High Court
Case Details
Court No. - 78 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 17553 of 2022 Applicant :- Dheeraj Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Krishna Kant Dubey,Santosh Kumar Dubey,Sr. Advocate Counsel for Opposite Party :- G.A. Hon'ble Ali Zamin,J.
Legal Reasoning
Heard Shri Amrendra Nath Singh, Senior Advocate assisted by Santosh Kumar Dubey, learned counsel for the applicant, learned AGA for the State and perused the record. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant seeking enlargement on bail in Case Crime No.284 of 2020, under Sections 8/20 of NDPS Act at Police Station Suriyawa District Sant Ravidas Nagar (Bhadohi). Learned counsel for the applicant has submitted that the applicant is driver of Tata 1109 EX vehicle No.UP 72 AT 7706 and has been falsely implicated in the present case. It is further submitted according to the prosecution version, on 14.11.2020 from Tata 1109 EX vehicle No.UP 72 AT 7706 750 kgs Ganja in 25 sacks and each sack containing 6 packets were alleged to have been recovered from the possession of the accused applicant and Bheem Prasad Gupta @ Bhushan Sahu. He further submits that from Mahindra Xylo bearing No.DL 3 CBM 0552 the co-accused Rajesh Pal @ Sonu, Surendra Kumar Jaiswal and Harendra Kumar Pal were arrested. He further submits that as per statement of Bheem Prasad Gupta @ Bhushan Sahu, Surendra Kumar Jaiswal and Dhirendra Pratap Singh were partner and they were carrying the said Ganja. He has further submitted that at the time of arrest, mandatory provisions contained in Standing Order No.1/89 Central Government of India dated 13.06.1989, clause 1.7 of clause (b) and (e) have not been complied with regard to the sampling of the recovered Ganja. It is submitted that as per standing order 1/89, Central Government of India dated 13.06.1989 all the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotics drugs and psychotropic substances seized shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama drawn on the spot. In case of identical size and weight, bearing identical markings and the contents of such packages given identical result is on color test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of 10 packages/containers except in case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each of such lot of packages/containers one sample in duplicate may be drawn. As per sub Section 2.8 while drawing one sample (in duplicate) from a particular lot, it must be ensured that representative samples in equal quantity are taken from each packages/containers of that lot and mixed together to make a composite whole from which the samples are drawn for that lot. According to sub section 3.1 after sampling, a detailed inventory of such packages/containers shall be prepared for being enclosed to the panchnama. Original wrappers shall also be preserved for evidentiary purposes. He next submits that as required by the standing order inventory has not been prepared. He further submits that there is no independent witness of the alleged recovery. Learned counsel submits that the aforesaid standing order is not complied with in the instant case and on this very ground he is entitled for bail.He further submits that charge-sheet was also submitted beyond the period prescribed for the submission of the charge-sheet although, default bail was not granted to the applicant. He further submits that the co- accused Harendra Kumar Pal, Surendra Kumar Jaiswal and Rajesh Pal @ Sonu have been granted bail by co-ordinate Benches of this Court vide orders dated 10.02.2022, 02.03.2022 and 02.12.2021 in Criminal Misc. Bail Application Nos.3879 of 2022, 35080 of 2021 and 35820 of 2021, respectively, therefore, the applicant is entitled for bail on the ground of parity. There is no independent eye witness of the alleged recovery, which has been shown by the police. He has further submitted that in case the applicant is released on bail, he will not misuse the liberty of bail. The applicant has no criminal history and he is in jail since 14.11.2020. On the other hand, learned A.G.A. opposes the application for bail by submitting that from the possession of the co-accused, who has been granted bail, contraband has not been recovered but after arrest on opening the cavity of the Tata 1109 EX vehicle No.UP 72 AT 7706 750 kgs. Ganja in 25 sacks has been recovered, from which it is clear that applicant was in conscious possession of the recovered Ganja, however he concedes that at the time of recovery Standing Order No.1/89 Central Government of India dated 13.06.1989 has not been complied by the Recovery Officer. Considering the facts and circumstances of the case as well as submissions advanced by learned counsel for the parties and also perusing the material on record, nature of offence, ground for non-compliance of Standing Order No.1/89 Central Government of India dated 13.06.1989, as well enlargement of co-accused on bail, without expressing any opinion on merit of the case, the applicant is entitled for bail, let the applicant- Dheeraj Kumar involved in aforesaid case crime be released on bail on his/her furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions :- (i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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 IPC. (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., may be issued and if 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 IPC. (iv) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) 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. Order Date :- 20.7.2022 Zafar Digitally signed by MOHAMMAD ZAFAR ANSARI Date: 2022.07.27 10:15:47 IST Reason: Location: High Court of Judicature at Allahabad