High Court
Case Details
1 Court No. - 84 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13484 of 2022 Applicant :- Ajay Kumar Opposite Party :- Union of India Counsel for Applicant :- Rajendra Singh,Chandrakesh Mishra Counsel for Opposite Party :- Krishna Agarawal Hon'ble Sameer Jain,J. 1. Heard Sri D.S. Mishra, learned Senior Advocate assisted by Sri Abhishek Mishra, learned counsel for the applicant, Sri Krishna Agarawal, learned counsel for the DRI and Sri Varun Kumar Agnihotri, learned Brief Holder for the State. 2. The instant bail application has been filed seeking release of the applicant on bail in Special Trial No. 87A of 2004, under Sections 8/17/21/27A/29 N.D.P.S. Act, Police Station D.R.I., District Varanasi during pendency of the trial. Brief facts 3. According to the prosecution, on 18.10.2003 Truck No. MP 09 KC 1923 was intercepted by the officers of Directorate of Revenue Intelligence (in short DRI) and from the secret cavity of the truck 4 Kilogram Heroin was recovered and driver Mahadev Singh and cleaner Deepak Soni were arrested. During investigation, when the statements of driver and cleaner were recorded under Section 67 of N.D.P.S. Act then they disclosed that applicant is the owner of the Truck No. MP 06 KC 1923 and recovered contraband were of one Lakhi Seth, resident of District Sasaram, Bihar and Sunil Kumar Kashyap was the manager of the truck. Both the accused further stated that they never met with the applicant i.e. owner of the truck and they transported the contraband on the instructions of the Manager Sunil Kumar Kashyap. After investigation, complaint was filed on 13.04.2004 and summons were issued to applicant and others.
Facts
4. Applicant and two others challenged the proceeding of the
Legal Reasoning
complaint before this Court in Criminal Misc. Application No. 4897 of 2004. On 10.06.2004 this Court admitted the application under Section 482 Cr.P.C. filed by the applicant and two others and stayed the further proceedings pending against them till further orders. 5. From the record it reflects that the Application under Section 482 Cr.P.C. filed by the applicant and two other remained pending till 22.11.2017 and on 22.11.2017 when nobody appeared on behalf of the applicant and others then application under Section 482 Cr.P.C. was dismissed for want of prosecution and interim order dated 10.06.2004 was also vacated and thereafter applicant surrendered on 22.02.2022 and applied for bail before the trial court but his bail application was dismissed. Submission made on behalf of the applicant 6. Learned counsel for the applicant submitted that admittedly applicant was neither arrested at spot nor any recovery was made from his possession and his name was revealed in the statement of co-accused persons recorded under Section 67 N.D.P.S. Act, who were arrested at spot and in view of the law laid down in the case of Tofan Singh Vs. State of Tamil Nadu (2021) 4 SCC 1 the statement of accused recorded under Section 67 N.D.P.S. Act is not admissible. 7. He further submits that applicant has been made accused in the present matter only due to the reason that he was owner of the truck from which 4 Kilogram Heroin was recovered from the possession of 2 of 8 co-accused persons i.e. driver and cleaner of the truck and admittedly neither any recovery was made from the possession of applicant nor he was arrested at spot and there is no evidence on record, which can even suggests that applicant was also involved in trafficking of illegal contraband. 8. He next urged, although statements of co-accused persons recorded under Section 67 of N.D.P.S. Act are not admissible but even from the perusal of the statements it reflects that both accused i.e. driver and cleaner of truck never met with the applicant and they were instructed by the Manager Sunil Kumar Kashyap and there was no evidence against the applicant that he also involved in the trafficking of recovered Heroin, therefore, applicant and others preferred Application U/S 482 Cr.P.C. No. 4897 of 2004 and initially in the year 2004 they got stay order in their favour but unfortunately in the year 2017 none could appear on behalf of the applicant and others, therefore, for non prosecution their application under Section 482 Cr.P.C. was dismissed but the fact remains that initially this Court indulged into the matter and was of the view that complaint filed against the applicant and two others is bad, therefore, considering the fact that proceeding with regard to applicant was stayed by this Court and it remained stayed for last about 13 years, applicant may be enlarged on bail. 9. He next submitted that the Manager Sunil Kumar Kashyap has been released on bail by the co-ordinate Bench of this Court vide order dated 16.05.2022 in Criminal Misc. Bail Application No. 12389 of 2022 and Sunil Kumar Kashyap, the Manager was the person who gave instructions to the co-accused, who were apprehended at spot i.e. driver and cleaner of truck, therefore, on the ground of parity also applicant is entitled to be released on bail. 3 of 8 10. He further submits that although application under Section 482 Cr.P.C. filed by the applicant and two others was dismissed by this Court in the year 2017 but applicant could not become aware about this fact as his counsel also could not become aware that application under Section 482 Cr.P.C. has been dismissed on 22.11.2017, therefore, he could not inform the applicant and when applicant came to know in the year 2022 that his application has been dismissed in the year 2017 then he surrendered before the court concerned on 22.02.2022, therefore, it cannot be said that the applicant is an absconder. He further submits that as applicant came to know about the dismissal of his application under Section 482 Cr.P.C. very belatedly after about more than four years, therefore, he could not file any recall application although his application 482 Cr.P.C. was dismissed for want of prosecution. 11. He next submits that applicant is not having any criminal history to his credit and he is in jail since 22.02.2022. 12. He further submits that in the meantime trial of the co-accused persons Mahadev and Deepak i.e. driver and cleaner of the truck have been concluded and they had been convicted on 03.06.2010. 13. He next submitted that applicant is facing the agony of criminal case since the year 2003 and initially this Court has stayed the proceedings pending against him and he is in jail for last about one year, therefore, he may be released on bail. Submission on behalf of the State 14. Per contra, learned Brief Holder for the State and learned counsel for DRI vehemently opposed the prayer for bail and submitted that applicant is the owner of the truck and in his truck a secret cavity was constructed and from the cavity 4 Kilogram Heorin was 4 of 8 recovered and during investigation it was revealed that he was the owner of the truck and even in the statement of co-accused persons recorded under Section 67 of N.D.P.S. Act, who were arrested at spot they disclosed that applicant was the owner of the truck, therefore, it cannot be said that applicant was not having any conscious possession over the recovered 4 Kilogram Heroin. 15. Learned counsel for the DRI further submits that during investigation applicant could not be apprehended and he was absconded, therefore, complaint was filed against him as an absconder. He further submits that although in the year 2004 applicant has got stay order in his favour from this Court with regard to proceeding pending against him but from perusal of the stay order, it appears that while passing the same no reason has been assigned and further, Application U/S 482 Cr.P.C. moved by the applicant was dismissed by this Court in the year 2017 but he appeared before the trial court only in the month of February, 2022 i.e. after about more than four years and this fact shows that he again absconded and it cannot be accepted that he could not receive any information about the dismissal of his application by this Court moved under Section 482 Cr.P.C. 16. Learned counsel for the DRI further submits that apart from the statement of the co-accused persons recorded under Section 67 of N.D.P.S. Act there is evidence against the applicant that he was the owner of the truck, therefore, it cannot be said that only evidence against the applicant in the present matter is the statement of co- accused persons recorded under Section 67 of N.D.P.S. Act. He further submits, case of applicant is distinguishable from the case of Sunil Kumar Kashyap whose bail was granted by the co-ordinate Bench of this Court as co-accused Sunil Kumar Kashyap was the 5 of 8 Manager of the truck while applicant is the owner of the truck. He further submits, it cannot be said that without any knowledge of the applicant a secret cavity was constructed in his truck, therefore, involvement of the applicant in the present matter is evident, therefore, considering the huge quantity of 4 Kilogram Heroin and the fact that two co-accused persons, who were arrested at spot have already been convicted applicant is not entitled to be released on bail. Analysis 17. I have heard learned counsel for the parties and perused the record of the case. 18. A huge quantity of 4 Kilogram Heroin was recovered from a truck and at the time of recovery driver and cleaner of the truck were apprehended and during investigation the name of applicant was disclosed as owner of the truck and thereafter complaint was filed against the applicant and others in the year 2004 and applicant was summoned along with other co-accused persons but it appears, he challenged the proceeding of complaint case pending against him before this Court in Application U/S 482 Cr.P.C.No. 4897 of 2004 and on 10.06.2004 application filed under Section 482 Cr.P.C. was admitted and till further orders proceeding with regard to applicant and two other co-accused (except driver and cleaner of the truck) was stayed and on 22.11.2017 the Application U/S 482 Cr.P.C. filed by the applicant and two others was dismissed for non prosecution and interim order was vacated thus, proceedings of complaint case pending against applicant remained stayed till November, 2017 ie. for last about more than 13 years. 19. Although, applicant is the owner of the truck and from the secret cavity of the truck 4 Kilogram contraband (Heroin) was recovered 6 of 8 from the possession of driver and cleaner of the truck but fact remains that when complaint was filed by DRI against the accused persons including applicant then with regard to the applicant and two others (excluding driver and cleaner of the truck) proceeding was stayed by this Court till further orders and proceeding remained stayed for 13 years. 20. Further, except the fact that applicant is owner of the truck no other evidence is against him on record which can show that applicant either constructed the cavity in truck or he instructed either Manager of truck or driver or cleaner of the truck for the trafficking of contraband and co-accused Sunil Kumar Kashyap, the Manager of the truck has already been enlarged on bail by this Court and he also challenged the proceedings pending against him along with applicant in the same application filed under Section 482 Cr.P.C. 21. Although, application under Section 482 Cr.P.C. moved by applicant and others was dismissed in November, 2017 and applicant appeared before the court concerned only in February, 2022 i.e. after more than four years but as application under Section 482 Cr.P.C. was dismissed for want of prosecution, therefore, possibility cannot be ruled out that he could not become aware about the dismissal of his application moved under Section 482 Cr.P.C. 22. Applicant is not having any criminal history and he is in jail since 22.02.2022 i.e. for last about almost a year and co-accused Sunil Kumar Kashyap, the Manager of the truck against whom there was allegation that on his instruction both driver and cleaner transported illegal contraband, has already been enlarged on bail by this Court. 23. Therefore, from the discussion made above, in my view, applicant is entitled to be released on bail. 7 of 8 24. In the light of discussions made above, without expressing any opinion on the merits of the case, the instant bail application is allowed. 25. Let the applicant - Ajay Kumar be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted. (ii) The applicant shall not directly or indirectly, make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or any police officer or tamper with the evidence. (iii) The applicant shall not indulge in any criminal and anti-social activity. 26. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant. Order Date :- 8.2.2023 AK Pandey Digitally signed by :- ANUPAM KUMAR PANDEY High Court of Judicature at Allahabad 8 of 8