High Court
Case Details
Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43721 of 2022 Applicant :- Shankar Varik @ Vikram Opposite Party :- Union of India Counsel for Applicant :- Pawan Shukla Counsel for Opposite Party :- Ashish Pandey Hon'ble Shekhar Kumar Yadav,J.
Legal Reasoning
Heard learned counsel for the applicant, Mr Ashish Pandey, learned counsel for the NCB, learned AGA for the State and perused the record. This 2nd bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant seeking enlargement on bail in Case Crime No. 12 of 2020, under Sections 8/20/29 of NDPS Act at Police Station Challani NCB Lucknow, District Jhansi. While rejecting the first bail application on 17.01.2022, the Hon'ble Court was pleased to observe as under:- "However, it is expected that the trial court shall make all sincere endeavors to expedite the proceedings of the trial and conclude the same as expeditiously as possible, in accordance with law, within a period of six months." It is contended by the learned counsel for the applicant that despite directions issued by this Court for completing the trial within six months by the trial Court, the trial has not yet been completed though substantial period have elapsed and, therefore, the accused-applicant may be released on bail as two of the co accused persons, namely Chhote Lal and Rajendra Sharaf have already been ordered to be released on bail after the rejection of the first bail application. In short, as per allegation, 1025 kgs of Ganja was found in two trucks on 28.05.2022 at about 18.30 hrs wherein four persons namely Vinod Singh, Sanjay Kumar Singh, Shankar Barik @ Vikram (applicant) and Chhotelal were found. Total 25 bags were recovered. Four accused arrested have confessed to the involvement in the alleged crime. Learned counsel for the applicant has submitted that the applicant has been falsely implicated in the present case. During lock-down, the applicant went to Jhansi for his personal work and he did not get any vehicle to return back to his village at Chhattisgarh. The applicant was neither owner of the Dumper nor driver of the Dumper. The applicant was merely a passenger in the vehicle in question. He has further submitted that the applicant has no knowledge about recovered contraband. The alleged Dumper, from which the contraband has been recovered, does not belong to the applicant. He has further submitted that neither any recovery has been made nor any recovery memo has been prepared on the spot. At the time of arrest, mandatory provision of Sections 42, 50, 52, 53, 57 of NDPS Act have not been complied with. He has further submitted that nothing has been recovered from the possession of the applicant and the alleged recovery is false and fabricated. There is no independent eye witness of the alleged recovery, which has been shown. He has further submitted that there is no evidence on record which shows that applicant was in conscious possession or constructive possession of the recovered contraband. The applicant is having no criminal history. The applicant is in jail since 29.05.2020. It is further submitted that two of the co accused persons, namely, Chhotey Lal and Rajendra Sarraf have already been granted bail vide orders dated 18.08.2022 and 28.07.2022 passed in Criminal Misc Bail Application Nos. 14438 of 2021 and 26535 of 2021. On the other hand, learned counsel for the NCB opposed the bail application with the submission that once applicant's bail had already been rejected on merits, therefore, the delay in conclusion of trial, is not a new ground for the purpose of considering the present 2nd bail application. Moreover, all the grounds urged before this court have already been considered by this court while deciding the first bail application, hence the present 2nd bail application has no force and is liable to be rejected. Having considered the fact that despite the specific direction being issued by this Court vide order dated 17.01.2022 to conclude the trial within a period of six months but looking to the fact that there is no possibility of early conclusion of trial as well as the long incarceration of applicant in jail since 29.05.2020 and also taking into account the fact that two of the co accused, namely, Chhotey Lal and Rajendra Sarraf have been granted bail subsequent to the rejection of the first bail application of the present applicant. Hence, these grounds may be considered as fresh ground to consider the second bail application. Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, severity of punishment as well as totality of facts and circumstances, at this stage without commenting on the merits of the case, I find it a fit case for bail. Let the applicant- Shankar Varik @ Vikram, who is involved in aforementioned case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified. (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. (v) The Trial Court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant. In case of breach of of any of the above conditions, it shall be a ground for cancellation of bail. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses. Order Date :- 23.11.2022/RavindraKSingh Digitally signed by RAVINDRA KUMAR SINGH Date: 2022.11.24 16:40:11 IST Reason: Location: High Court of Judicature at Allahabad