Court No. - 89
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13370 of 2021 Applicant :- Sushil Opposite Party :- State of U.P.
Counsel for Applicant :- Ramesh Chandra Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard learned counsel for applicant and learned A.G.A. for State.
2. Perused the record.
3. This application for bail has been filed by applicant-Sushil seeking his enlargement on bail in Case Crime No. 35 of 2021, under section 8/21 N.D.P.S. Act, P.S. Gangoh, District- Saharanpur during the pendency of trial.
4. Learned counsel for applicant contends that applicant is innocent. He has been falsely implicated in above mentioned case crime number. Applicant is in jail since 24.1.2021. As such applicant has been under incarceration for more than two months. Applicant is man of clear antecendents inasmuch as he has not been convicted in any criminal case. It is next submitted that the co-accused Gurujayant has already been enlarged on bail vide order dated 22.3.2021 passed by co- ordinate bench of this Court in Crl. Misc. Bail Application No. 14052 of 2021. Copy of the bail order has been placed before the Court by learned counsel for the applicant. Same is taken on record. For ready reference same is reproduced hereunder:-
"Heard learned counsel for the applicant as well as learned AGA for the State and perused the material placed on record.
The instant bail application has been filed on behalf of the applicant Gurujayant with a prayer to release him on bail in Case Crime No. 36 of 2021, under Section 8/21 of N.D.P.S. Act, police station Gangoh, district Saharanpur during the pendency of trial.
Learned counsel for the applicant has contended that 10 gm. of smack is alleged to have been recovered from the possession of the applicant, which is below the commercial quantity, therefore provisions of Section 37 of the N.D.P.S. Act is not attracted in this case. In fact no such recovery was effected from the applicant. It is further submitted that since such recovery is not supported by independent witness, possibility of his false implication in the crime cannot be ruled out. It is next contended that in the present case the prosecution has failed to follow strictly the provisions of Section 50 of the N.D.P.S. Act. It is also argued that the applicant is absolutely innocent and has been falsely implicated in the present crime with a view to cause unnecessary harassment and victimize him. It is also contended that the the guidelines laid down by Hon'ble the Apex Court with regard to arrest of any person by the police has not strictly been followed in the present case and the sampling of the alleged contraband substance has not been done in this case in accordance with standing order. The applicant is in jail since 24.1.2021 and has no criminal antecedent to his credit. The Investigating Officer has submitted charge sheet in this case on 2.2.2021. In case the applicant is released on bail he will not misuse the liberty of bail.
Per contra learned A.G.A. has opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage who is involved in supplying contraband, therefore, the applicant does not deserve any indulgence. In case the applicant is released on bail he will again indulge in similar activity.
Having considered the submissions of the parties, without expressing any opinion on the merits, let the applicant Gurujayant involved in the aforesaid case, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that :-
(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.
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."
5. On the aforesaid premise, it is urged that for the facts and reasons recorded in order dated 22.3.2021 applicant is liable to be enlarged on bail. It is also contended that case of present applicant is similar and identical to that of co-accused Gurujayant as such applicant is liable to be enlarged on bail on the ground of parity. It is also contended that in case applicant is enlarged on bail, he undertakes not to misuse the liberty of bail.
6. Learned A.G.A. vehemently opposed the prayer of bail.
7. Having heard learned counsel for applicant, learned A.G.A. for the state and upon perusal of material brought on record, nature of offence, evidence, complicity of the accused and larger mandate of Article 21 of the Constitution of India and dictum of Apex Court in Dataram Singh Vs. State of U.P. and another, reported in (2018) 3 SCC 22 but without expressing any opinion on merits of the case, I am of the view that applicant has made out a case for bail. Accordingly, bail application is allowed.
8. Let the applicant-Sushil be enlarged on bail in Case Crime No. 35 of 2021, under section 8/21 N.D.P.S. Act, P.S. Gangoh, District- Saharanpur on furnishing a personal bond and two sureties each in the like amount to the satisfaction of Magistrate/Court concerned, subject to following conditions:-
(i) The applicant will not tamper with prosecution evidence.
(ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant will not indulge in any unlawful activities.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever.
9. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
Order Date :- 8.4.2021/Ankita