High Court
Case Details
Court No. - 79 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49125 of 2021 Applicant :- Burhan Opposite Party :- State of U.P. Counsel for Applicant :- Satendra Bahadur Yati,Masoom Alam,Naseem Ahmad,Syeda Alia Khatoon Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. The copy of the instruction is taken on record.
Legal Reasoning
Heard Sri Salman Ahmad, Advocate having AOR No. A/S0879/12 holding brief of Sri Naseem Ahmad, learned counsel for the applicant, and Sri S.K. Ojha, learned AGA for the State. This bail application purported to be under Section 439 of the Cr.P.C. has been moved for seeking bail in Case Crime No. 0168 of 2018, under Section 8/20/29 N.D.P.S. Act & Sections 420, 467, 468, 471/34 I.P.C. registered at Police Station- Saiyadraja, District- Chandauli. The bail application of the applicant has been rejected by the court below, on 21.10.2021. The learned counsel for the applicant has argued that the FIR has been lodged by Inspector Dhananjay Pandey STF Head Quarter Lucknow u/s 8/22 N.D.P.S. Act & Sections 419, 420, 467, 468, 471/34 I.P.C. before Police Station Saiyadraja, Chandauli being FIR No. 0168 on 04.07.2018 at 08:09 hours against two named accused persons with the allegation that pursuant to the tip so extended to prosecution, the recovery of 12.40 quintal of ganja was sought to be made from the named accused persons. He further argued that the applicant is not named in the FIR and no recovery was sought to be made from him however, his name stood surfaced on the basis of the statement of one Smt. Tasbiran who happens to be the mother of Mohd. Shafi, the nominated accused wherein for the very first time the name of the applicant has been taken, being at page no. 6 of supplementary affidavit dated 19.01.2022. He further argued that there was no occasion for the applicant to have committed the said offence neither he was found arrested on the spot nor he was named in the FIR. He next contended that the co-accused Rustam Ali has already been enlarged on bail by coordinate bench of this court in Crl. Misc. Bail Application No. 42215/2021 vide order dated 12.01.2022. He next contended that the applicant is languishing in jail since 21.09.2021 having no criminal history and in this regard he has referred to paragraph no. 11 of the bail application. Countering the said submission learned AGA for the State has opposed the bail while arguing that he has received instruction on 19.02.2022 from his client while arguing that huge quantity of ganja to the extent of 12.40 quintal has been recovered from the nominated accused in the FIR which is over and above the commercial quantity which is 20 kg as per the item no. 55 to the Schedule under Sub Clause (viia) and (xxiiia) of section 2 of the N.D.P.S. Act. Learned AGA has further argued that on the specific instruction of his client, the possession of 12.40 quintal of ganja being the contraband was recovered from the nominated accused and not the applicant herein as the name of the applicant stood surfaced in the statement of the mother of one of co-accused Mohd. Shafi being Smt. Tasbiran. Learned AGA has further argued that the applicant is not entitled to bail merely because he was not arrested on the spot and no recovery what so ever made on the spot, however he could not dispute the fact that the applicant does not possess any criminal history. Considering the submission so advanced by the learned counsel for the parties, this Court finds that this is a fit case for grant of bail as religiously following the mandate as contained under section 37 of the N.D.P.S. Act, 1985 in the light of the para meters so set forth by the Hon'ble Apex Court in the case of Union of India Vs. Shiv Shankar Kesari (2007) 7 SCC 798 as well as in the case of State of Kerala Vs. Rajesh (2020) 12 SCC 122, this court prima facie finds that the applicant was not named in the FIR and the possession of contraband being 12.40 quintals ganja was not recovered from the applicant and the name of the applicant stood surfaced from the statement of the mother of co-accused and further the applicant does not possess any criminal history. Thus, without going into the merit of the matter this court finds that the present case to be a fit case for grant of bail as this court finds reasonable ground for believing that he is not guilty of the offence and he is not likely to commit any offence while on bail. The said observation of the court may not be construed to be a expression that this court has adjudicated on merit as the aforesaid observation are not only tentative but are only referable for grant of bail at this stage. Courts have taken notice of the overcrowding of jails during the current pandemic situation (Ref.: Suo Motu Writ Petition (c) No. 1/2020, Contagion of COVID 19 Virus in prisons before the Supreme Court of India). These circumstances shall also be factored in while considering bail applications on behalf of accused persons. In the light of the aforenoted discussion and without making any observations on the merits of the case, the bail application is allowed. Let the applicant Burhan involved in aforesaid 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 with the following conditions that :- (i). The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial. (ii). The applicant shall cooperate in the trial sincerely without seeking any adjournment. (iii). The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail. (iv). 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 to any police officer or tamper with the evidence. (v). In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. (vi). Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted. Taking into consideration that Covid-19 is continuing and due to which certified copy would not be possible to be obtained by the applicant, therefore, if a copy of this order downloaded from the official website of Allahabad High Court and self attested by the counsel for the applicant is placed before the Court, the same would be entertained. Order Date :- 21.2.2022 Nisha Digitally signed by NISHA KUMARI Date: 2022.02.24 13:48:39 IST Reason: Location: High Court of Judicature at Allahabad