Supplementary affidavit filed today on behalf of applicant is taken on record.
Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and perused the record of the case.
The instant bail application has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No. 249 of 2020, under Section 18/20 of Narcotics Drugs & Psychotropic Substances Act, police station Sajeti, district Kanpur Nagar, during the pendency of trial.
It is submitted by learned counsel for the applicant that the applicant is absolutely innocent and has falsely been implicated in the present case with some ulterior motive. It is further submitted by learned counsel for the applicant that as per prosecution case, 800 gms of Charas is said to have been recovered from a bag, which was carrying by the applicant. Main substratum of argument of learned counsel for the applicant is that the recovered contraband from the possession of the applicant is less than the commercial quantity, therefore, provisions of section 37 of N.D.P.S. Act are not attracted in the instant case. It is also submitted by the learned counsel for the applicant that the guideline as laid down by the Supreme Court regarding arrest of a person by the police, has not been followed in the present case.Learned counsel for the applicant also contended that in the present case, the sampling of contraband has not been done in accordance with standing order. It is further contended that since such recovery is not supported by any independent public witness, possibility of false implication of the applicant in the crime cannot be ruled out. Learned counsel for the applicant has explained the criminal history of one case being Case Crime No. 2 of 2015 shown against the applicant in paragraph No. 4 of the supplementary affidavit by contending that in that case the applicant is on bail, copy of bail order has been filed with the supplementary affidavit. The applicant is facing detention since 30.08.2020. It is next contended that there is no chance of the applicant of fleeing away from the judicial process or tampering with the prosecution evidence. There is no prospect of trial of the present case being concluded in near future due to heavy dockets. Learned counsel for the applicant lastly submitted that if the applicant is released on bail, he will not misuse the liberty of bail and will cooperate in the early disposal of the case.
Per contra, learned Additional Government Advocate has opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage therefore, the applicant does not deserve any indulgence. In case, the applicant is released on bail, he will misuse the liberty of bail.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, I am of the view that the applicant has made out a fit case for bail. Hence, the bail application is hereby allowed.
Let the applicant Shivshankar @ Bhola, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
(v) The applicant shall file computer generated copy of this order downloaded from the official website of High Court Allahabad.
(vi) The computer generated copy of this order shall be self attested by the counsel of the party concerned.
(vii) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 4.2.2021 Sazia