Court No. - 76
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49654 of 2021 Applicant :- Vivek Chaturvedi Opposite Party :- State of U.P.
Counsel for Applicant :- Ravindra Prakash Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Pachori,J.
Heard Shri Ravindra Prakash Srivastava, learned counsel for the applicant, learned A.G.A. for the State and perused the material on record.
The present bail application has been filed on behalf of applicant, Vivek Chaturvedi with a prayer to release him on bail in Case Crime No. 191 of 2021, under Section 8/22/23 of Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station- Dhebarua, District- Siddharth Nagar, during pendency of trial.
Brief facts of the case are that the first information report dated 20.9.2021 has been lodged against the applicant on the basis of recovery memo of 81.06 gm. Morphin from two accused including the applicant, which has been recovered by police party on the information of the informer. 81.06 gm. Morphin has been recovered from other co-accused Ram Kishan and 40.06 gm Morphin has been recovered from the applicant, which is below commercial quantity as per item No. 77 of the Schedule.
It has been submitted by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case with ulterior motive. No incriminating article/contraband i.e. 40.06 gm. Morphin has been recovered from the personal possession of the applicant. The police has shown recovery of 40.06 gm. Morphin from the right pocket of the pant of the applicant, which is below commercial quantity. The police party had not followed the mandatory provisions of Sections 50 of the NDPS Act. It is further submitted that in order to make search and recovery of the contraband articles from the body of the applicant, search and recovery has to be inconformity with the requirements of Section 50, NDPS Act. A search and recovery made from the applicant of the alleged contraband does not satisfy the mandatory requirements of Section 50, NDPS Act as held by Constitution Bench of Apex Court in the case of Vijaysinh Chandubha Jadeja Vs. State of Gujarat, (2011) 1 SCC 609.
It is further submitted that the applicant has no criminal history to his credit. Charge sheet has been submitted on 31.10.2021 and the applicant is no more required for the purpose of investigation. It is next submitted that there is also no possibility of the applicant either fleeing away from the judicial process or tampering with the witnesses. The applicant, who is languishing in jail since 20.9.2021, undertakes that he will not misuse the liberty, if granted. It has also been pointed out that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.
Per contra learned A.G.A. has vehemently opposed the prayer for bail. In case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.
Upon considering the totality of facts and circumstances of the case and without expressing any opinion on merits of the case, I find it to be a fit case for bail.
Let applicant, Vivek Chaturvedi be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions-
(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.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Order Date :- 23.12.2021 T. Sinha