High Court
Case Details
Neutral Citation No. - 2023:AHC:152346 Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 17029 of 2023
Legal Reasoning
6. The right of an accused under the Constitution of India, more particularly under Article 21, do not stand superseded at pre-trial stage specifically when reasonable ground exists for grant of bail. It is settled law that deprivation of liberty may be considered a punishment unless it is required to ensure that an accused person will stand his trial when called upon. It is principle of law that every person is deemed to be innocent until duly tried and duly found guilty. 8. It is not the case of the State that the applicant has not cooperated in the investigation or proceedings before the trial court. 9. No material, facts or circumstances has been shown by learned AGA/State that the accused may tamper with the evidence or witnesses or the accused is of such character that his mere presence at large would intimidate the witnesses or that accused will use his liberty to subvert justice or tamper with the evidence. 10. It is settled principle of law that the object of bail is to secure the attendance of the accused at the trial. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned AGA. 11. Learned AGA for the State has not shown any material or circumstances that the accused/applicant is not entitled to bail in larger interests of the public or State. 12. The presumption under section 54 of the NDPS Act is applicable at the stage of trail and not at the pretrial stage when the bail application is being considered. The recovery of the alleged substance is below the commercial quantity. 13. The alleged recovery is required to be established by the prosecution by cogent material. It is for the prosecution to show that the recovery and seizure is made in accordance with provisions of the NDPS Act and Criminal Procedure Code. 14. It is not the case of the opposite party/State that the search and arrest is being made in pursuance of a warrant issued by the Magistrate concerned authorised under law. No material has been produced by opposite party/State to demonstrate that the search and seizure of the narcotic substance has been made by an officer/person authorised or empowered under law. 15. No particulars, material or circumstance has been shown to demonstrate that the officer concerned has reason to believe from personal knowledge or information given by any person and taken down in writing that offence under the NDPS Act is committed which lead to search, seizure or arrest. 16. No documents has been produced by the opposite party to show that grounds for believe that offence has been committed under the Act which is taken down in writing has been send to the immediate superior officer in accordance with law. There is no independent witness of the alleged search, seizure and recovery. 16A. A perusal of the recovery memo would demonstrate that the same does not record weight of the contraband substance nor the same records how the substance recovered was measured. The alleged recovery does not seem to be in accordance with law. 17. Considering the facts and circumstances of the case, nature of offence, evidence, complicity of the accused, submissions of learned counsel for the parties and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed. 18. Let the applicant Shakeel alias Hazi Bona alias Hazi Faina involved in Case Crime No. 78 of 2023, under Sections 8/20 N.D.P.S. Act, Police Station Rasoolpur, District Firozabad be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:- i. The applicant will not tamper with the evidence during the trial. ii. The applicant will not pressurize/intimidate the prosecution witness. iii. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted and/or the applicant shall make himself available for interrogation by a police officer as and when required. iv. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. v. The applicant shall not directly or indirectly make any 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 to any police officer or tamper with the evidence. vi. The applicant shall not leave India without the previous permission of the Court. vii. In the event, the applicant changes his residential address, he shall inform the court concerned about his new residential address in writing. 19. In case of breach of any of the above condition, the prosecution shall be at liberty to move bail cancellation application before this Court. Order Date :- 28.7.2023 Bhaskar Digitally signed by :- BHASKAR High Court of Judicature at Allahabad
Arguments
Applicant :- Shakeel Alias Hazi Bona Alias Hazi Faina Opposite Party :- State of U.P. Counsel for Applicant :- Rajesh Kumar,Manoj Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Vikram D. Chauhan,J. 1. Learned AGA submits that instructions have been received in the case and the bail application may be heard. Learned counsel for the parties urge that the matter be heard. 2. Heard learned counsel for the applicant, learned AGA for the State and perused the record. 3. As per prosecution case, a recovery of 2 kg and 100 gm of Charas is made by police from house which belong to applicant. The applicant was found present at the time of seizure. The alleged recovery is made on 17.2.2023. The applicant is in jail since 18.2.2023. The memo of recovery quantity of the contraband substance has not been recorded and how the contraband substance has been weighed has not been recorded. Although in the first information report details have been provided. However, once memo of recovery does not disclose the quantity of the contraband substance the reliance on the first information report would be a nullity. 4. Learned counsel for the applicant submits that the applicant has been falsely implicated. The alleged recovery has not been made in accordance with law. There is no independent witness of the alleged recovery. The said search and seizure has not been made by person authorised or empowered under law. There was no drug testing kit or other measures with the officials at the time of recovery which could identify the alleged substance as a narcotic and psychotropic substance. The recovery (including search and seizure) is in violation of the N.D.P.S Act and Criminal Procedure Code. The applicant cannot be permitted to remain in jail as a punitive measure during trial. It is further submitted by learned counsel for the applicant that the applicant has criminal history of two cases in which he has been acquitted. 5. Learned AGA has opposed the bail application, however does not dispute the factual matrix. It is further submitted that at the pre-trial stage, the innocence of applicant cannot be adjudged. It is further submitted that recovery of abovementioned substance is below commercial quantity.