High Court
Case Details
Court No. - 53 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30270 of 2021 Applicant :- Sunil Kumar Mishra Opposite Party :- Union of India Counsel for Applicant :- Chandrakesh Mishra,Daya Shankar Mishra(Senior Adv.) Counsel for Opposite Party :- Ashish Pandey Hon'ble Om Prakash-VII,J.
Legal Reasoning
Heard Shri Daya Shanker Mishra, learned Senior Counsel assisted by S/Shri Chandra Kesh Mishra and Abhishek Mishra, learned counsel for the applicant and Shri Ashish Pandey, learned counsel appearing for N.C.B.. It is submitted by the learned Senior Counsel appearing for the applicant that the applicant is innocent and has been falsely implicated in the present case. He has not committed the present offence. Though this is second bail application on behalf of the applicant yet in the similar circumstances second bail application of co-accused Anil Kumar Mishra and third bail application of co-accused Rakesh Singh have been allowed on 28.6.2021 and 22.2.2021 respectively through Criminal Misc. Bail Application Nos.7640 of 2020 and 3598 of 2020. It is next contended that nothing has been recovered from the applicant. If entire prosecution case is taken into consideration then also applicant was only sitting on the vehicle concerned. Recovery has been shown from the possession of the co-accused, who was travelling in the Volvo Bus. Statement recorded under Section 67 of the N.D.P.S. Act can also not be taken into consideration against the applicant. At this juncture, learned Senior Counsel referred to law laid down by the Apex Court in Toofan Singh vs. State of Tamil Nadu, 2020 SCC Online SC 882. It is further submitted that relying upon the ratio laid down in Toofan Singh case (supra) co-accused Anil Kumar Mishra and Rakesh Singh have been allowed on bail. It is next contended that conscious possession can also not be construed in the present matter against the applicant. Applicant can not be denied for bail on the ground of criminal history. Referring to averments made in the affidavit filed in support of the bail application and the counter affidavit it is further submitted that criminal cases shown as criminal history have been properly explained through paragraph 19 of the bail application. Applicant is languishing in jail since 23.3.2017 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial. It is lastly submitted that trial has not been concluded as yet. On the other hand, learned counsel appearing for the NCB opposed the prayer for bail and submitted that this is second bail application on behalf of the applicant. He is habitual offender. He was present on the spot at the time of recovery. Conscious possession of the recovered contraband can safely be presumed against the applicant. Grounds taken in this application have already been taken and considered in the first bail application of the applicant. Applicant cannot be allowed on bail in view of the law laid down in Toofan Singh case (supra), as there is recovery of huge quantity of contraband from the possession of all co-accused and also there is evidence in the form of call details collected by the Investigating Officer during investigation. All the circumstances shown by the investigating agency clearly demonstrate that applicant was involved in the present matter. A prima facie case is made out against the applicant. In support of his submissions, learned counsel for NCB relied upon a decision of Apex Court in Union of India through Narcotics Control Bureau, Lucknow vs. Md. Nawax Khan, 2021 0 Supreme (SC) 508. In rejoinder, Shri Daya Shanker Mishra, learned Senior Counsel appearing for the applicant argued that it is a no evidence case against the applicant to connect him with the present matter. Nothing has been recovered from the possession of the applicant. Simply on the ground of criminal history, applicant cannot be denied from bail particular when criminal history has been explained. To substantiate this argument, learned Senior Counsel placed reliance upon a decision of the Apex Court in Prabhakar Tiwari vs. State of U.P. and others, Criminal Appeal No. 152 of 2020, 2020 (2) ACR 1095 (SC), decided on 24.1.2020. Having regard to the entire facts and circumstances of the case, considering the submissions made by the learned counsel for the parties and keeping in view the period of detention of the applicant, the fact that nothing has been recovered from the possession of the applicant, the fact that co-accused having identical role have been released on bail and also the law laid down by the Apex Court in Toofan Singh case (supra) 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. Let the applicant Sunil Kumar Mishra involved in NCB Case Crime No.5 of 2017 (S.T. No.100 of 2017), under Sections 8/21/29 N.D.P.S. Act, P.S. N.C.B., District - Lucknow be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. 1. The applicant will not tamper with the evidence during the trial. 2. The applicant will not pressurize/ intimidate the prosecution witness. 3. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted. 4. 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. 5. 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. In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court. Order Date :- 8.2.2022 safi Digitally signed by MAHBOOB SAFI Date: 2022.02.09 13:21:43 IST Reason: Location: High Court of Judicature at Allahabad