Shahrukh Qureshi v. State of U.P

Court No. - 74 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48464 of 2021 Applicant :- Shahrukh Qureshi Opposite Party :- State of U.P. Counsel for Applicant :- Gautam Dubey,Gauri Dubey,Salman Ahmad,Shahbaz Hassan Counsel for Opposite Party :- G.A. Hon'ble Vivek Varma,J.

¶1Second supplementary affidavit filed by the counsel for the applicant, is taken on record.

¶2Heard counsel for the applicant and learned AGA for the State.

¶3This is the second bail application. The first bail application was rejected by this Court on 05.07.2021.

¶4By means of the instant bail application, the applicant has prayed to be enlarged on bail in Case Crime No. 175 of 2020, under Sections 8/22 of NDPS Act, Police Station-Lohamandi, District-Agra, during pendency of the trial.

¶5Counsel for the applicant contends that the applicant is in jail since 11.10.2020. The applicant is a law abiding citizen and has always cooperated with the investigation, and has attended the trial. The trial is moving at snail's pace and shows no sign of early conclusion. The applicant cannot be faulted for the delay in conclusion of trial. In the present case, the prosecution proposes to examine four witnesses to bring home the charges. As per the status report sent by the trial court dated 01.11.2023, charges were framed against the applicant on 25.02.2021. Till date only one prosecution witness has been examined. Inordinate delay in concluding the trial has led to indefinite imprisonment of the applicant. The criminal history of the applicant has been explained in para 7 of the affidavit. In case, he is enlarged on bail, he will not misuse the said liberty.

¶6Counsel for the applicant has further placed reliance upon the judgment of the Hon'ble Supreme Court in the matter of Special Leave Petition (Crl.) No(s). 4169/2023 (Rabi Prakash vs. State of Odisha), in which the Hon'ble Supreme Court has held as follows; "2. The prosecution case appears to be that the police party while on patrolling duty on 02.10.2019 at about 12.30 p.m. on Nandapur-Semiliguda road MDR-55, spotted one full body twelve wheeler Truck (Eicher) bearing No.EB-13-BD-5753 coming from Nandapur side at a high speed and accordingly they chased and detained the truck at Bodenga Chhak and found three persons boarded in the said truck including the driver. Eventually, 247 kg. Ganja was recovered from the truck. The petitioner was one of the occupants of the truck and was arrested at the spot. He has been in custody for more than three and a half years. There are no criminal antecedents against the petitioner.

¶3We are informed that the trial has commenced but only 1 out of the 19 witnesses has been examined. The conclusion of trial will, thus, take some more time.

¶4As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent ? State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act."

¶7Learned A.G.A. has opposed the prayer for bail but could not satisfactorily dispute the aforesaid submissions from the record.

¶8Having heard counsel for the parties and having perused the record, I am of the prima facie view that no doubt, the quantity of recovered contraband would fall in the 'commercial quantity' and the provision of Section 37 of the NDPS Act would be attracted in the present case. However, it is also borne out from the record that the applicant is in jail for more than three years and out of four prosecution witnesses only one has been examined so far. Even the prosecution could not bring on record any material, which would show that the trial has been delayed on account of any fault on the part of the present applicant. Thus, the 'right of speedy trial' of the applicant as enshrined under Article 21 of the Constitution of India is violated and the conditions as mentioned in Section 37 of the NDPS Act can be dispensed with at this stage for the limited purpose of grant of concession of bail.

¶9Consequently, keeping in view the above stated facts and the law laid down by the Hon'ble Supreme Court in [Rabi Prakash vs. State of Odisha (supra)], more so when no reasonable apprehension has been brought to the fore by the State that the applicant, if enlarged on bail, would either tamper with the evidence or delay the trial or intimidate the witness, without commenting on merits of the case, I am of the opinion that the applicant is entitled to be enlarged on bail.

¶10Let the applicant Shahrukh Qureshi, involved in the aforesaid 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 the conditions that he:

(i) shall appear on the date fixed by the trial court;

(ii) shall not tamper with the prosecution evidence;

(iii) shall not pressurize the prosecution witnesses.

¶11In 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 :- 6.11.2023 Lbm/- High Court of Judicature at Allahabad