Shyam Babu Sonkar v. State of U.P

Court No. - 72 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41971 of 2023 Applicant :- Shyam Babu Sonkar Opposite Party :- State of U.P. Counsel for Applicant :- Kshitij Pal Singh,Santosh Singh Counsel for Opposite Party :- G.A. Hon'ble Krishan Pahal,J.

¶1List has been revised.

¶2Supplementary affidavit filed today is taken on record.

¶3Heard Sri Kshitij Pal Singh, learned counsel for the applicant, Sri S.P. Pandey, learned A.G.A. for the State and perused the material placed on record.

¶3Applicant seeks bail in Case Crime No.89 of 2023, under Section 8/21 of The Narcotic Drugs And Psychotropic Substances Act, 1985, Police Station-Karma, District Sonbhadra, during the pendency of trial.

¶4As per the allegations of the FIR, 95 grams of heroin is stated to have been recovered from the possession of the applicant and in all, 225 grams of heroin was recovered from the possession of three co-accused persons.

¶5Learned counsel for the applicant has stated that the applicant is absolutely innocent and has been falsely implicated in the present case with a view to cause unnecessary harassment and to victimize him. The said contraband is below the commercial quantity, as such the applicant is entitled for bail as the riders of Section 37 NDPS Act do not apply to the present case. Learned counsel has further stated that the criminal history of one case assigned to the applicant stands explained, which is not NDPS Act. The applicant is languishing in jail since 03.09.2023. In case, the applicant is released on bail, he will not misuse the liberty of bail.

¶6Learned A.G.A. has vehemently opposed the bail application on the ground that there is criminal history of one case assigned to the applicant.

¶7In Arif Khan @ Agha Khan v. State of Uttarakhand (2018) 18 SCC 380, in which the Apex Court held that Section 50 of the NDPS Act mandatorily required search of the suspect/accused to be carried out in the presence of a magistrate or Gazetted officer, even if such a suspect/accused had waived the right to be taken to a magistrate or Gazetted Officer.

¶8Upon 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.

¶9Let the applicant-Shyam Babu Sonkar, who is involved in aforementioned case 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.

¶10In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

¶11It 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 :- 16.10.2023 Ravi Kant (Krishan Pahal, J.) High Court of Judicature at Allahabad