Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12550 of 2021 Applicant :- Shambhu Shah Opposite Party :- State of U.P.
Counsel for Applicant :- Vijendra Kumar Mishra,Pravesh Kumar Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
The Court is presently working on virtual mode only due to surge in Covid-19 cases.
Heard learned counsel for the applicant and learned A.G.A. for the State and perused the record.
Applicant - Shambhu Shah has approached this Court by way of filing the present Criminal Misc. Bail Application u/s 439 Cr.P.C. seeking enlargement of bail arising out of Case Crime No. 748 of 2020, under Sections 8/21 Narcotic Drugs & Psychotropic Substances Act, 1985, Police Station - Khorabar, District - Gorakhpur after rejection of his bail application, vide order dated 7.11.2020, passed by learned Additional District and Sessions Judge, Court No.2, Gorakhpur.
The first Information Report discloses that applicant along with co-accused Sunil Shah were apprehended when they were travelling on a Apache motorcycle along with two other persons travelling on separate motorcycle and on search, 200 gram of alprazolam powder was recovered from each motorcycle. As per notification issued under N.D.P.S. Act, commercial quantity of alprazolam powder is 100 gram. It is further submitted that in the present case, no compliance of Section 50 of the N.D.P.S. Act was made and further that co-accused Sunil Shah has been granted bail by a co-ordinate Bench of this Court, vide order dated 19.3.2021 passed in Criminal Misc. Bail Application No.12057 of 2021. Applicant has no criminal history as declared in paragraph 14 of the application. Applicant, who is a poor person, has been falsely implicated in the present case. He is a hawker, who undertakes to clean ornament while going door to door in the villages. Applicant is languishing in jail since 16.10.2020, and in case, he is released on bail, he will not misuse the liberty of bail and will co-operate in trial.
Learned A.G.A. has vehemently opposed the prayer of bail and submits that it is a case where a psychotropic substance more than commercial quantity was recovered from the motorcycle on which applicant and co-accused were travelling. He further submits that no case of parity is made out as in the order granting bail to co-accused, neither any reason was given nor provisions of Section 37 of the N.D.P.S. Act were considered. The said order states that "considering the submissions made by learned counsel for the applicant as well as learned A.G.A., I find it to be a fit case for bail." In these circumstances, bail application of applicant is liable to be rejected.
Law on bail is well settled that 'Bail is rule and Jail is exception'. Bail should not be granted or rejected in a mechanical manner as it concerns liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as criminal antecedents of the accused. It is also well settled that the Court while considering an application for bail must not go into deep merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered. It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. The Court should record the reasons which have weighed with the count for the exercise of its discretionary power for an order granting or rejecting bail. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. The Court while granting bail in the case involving sexual offence against a woman should not mandate such bail conditions, which is/are against the mandate of "fair justice" to victim such as to make any form of compromise or marriage with the accused etc. and shall take into consideration the directions passed by Supreme Court in Aparna Bhat and others vs. State of Madhya Pradesh and another, reported in 2021 SCC Online SC 230, in this regard.
From the contents of the First Information Report, it is clearly evident that there is a recovery of 200 grams of alprazolam powder which is more than commercial quantity from the motorcycle of applicant and co-accused. The order granting bail to co-accused is without any reason even the provisions of Section 37 of N.D.P.S. Act were not considered which are essential for the purpose of granting bail under the N.D.P.S. Act (See order dated 19.4.2021 passed by the Supreme Court in Narcotics Control Bureau vs. Laxmi Prasad Soni etc. in Criminal Appeal Nos. 438-440 of 2021). Section 37 of the N.D.P.S. Act provides that before granting bail to accused, the Court must satisfied that there are reasonable ground for believing that accused is not guilt of such offence and he is not likely to commit any offence while on bail. In the present case, on the basis of material available, it cannot be said, at this stage, that applicant is not guilty of the offence alleged. It is also well settled that parity is not a sole ground to grant bail whereas in the present case, even no case of parity is made out. There is no requirement to comply with the provisions of Section 50 of N.D.P.S. Act, when there is a search of a vehicle only [See Than Kunwar vs. State of Haryana; (2020) 5 SCC 260] There are serious charges levelled against the applicant, therefore, no case for bail is made out. Therefore, bail application of applicant is hereby rejected.
Order Date :- 28.4.2021 Rishabh
[Saurabh Shyam Shamshery, J.]