Moolchand v. State of U.P Through Its Principal Secretary(Home) at Lko

Court No. - 72 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48424 of 2023 Applicant :- Moolchand Opposite Party :- State Of U.P Through Its Principal Secretary(Home) At Lko. Counsel for Applicant :- Abdul Majid Counsel for Opposite Party :- G.A. Hon'ble Krishan Pahal,J.

¶1List has been revised.

¶2Heard Sri Abdul Majid, learned counsel for the applicant, Sri Sunil Kumar, learned A.G.A. for the State and perused the material placed on record.

¶3Applicant seeks bail in Case Crime No.471 of 2023, under Section 8/18 of The Narcotic Drugs And Psychotropic Substances Act, 1985, Police Station-Baradari, District Bareilly, during the pendency of trial.

¶4As per the allegations of the FIR, 3 Kg. of opium is stated to have been recovered from the possession of the applicant and co-accused person Aditya Kumar Dangi on 16.09.2023.

¶5Learned counsel for the applicant has argued that the applicant is absolutely innocent and has been falsely implicated in the present case. If the contraband is divided between the two, then it falls below the commercial quantity, although the combined contraband is above the commercial quantity. Learned counsel for the applicant has stated that there is no compliance of mandatory provisions of Sections 50 and 52-A of the N.D.P.S. Act. There is no criminal history of the applicant. The applicant is languishing in jail since 17.09.2023. 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 the recovery of the contraband article is of commercial quantity, although he could not dispute the fact that the applicant has no criminal antecedents to his credit.

¶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.

¶8The Apex Court in the Case of Union of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798 has held that the court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.

¶9Considering the facts of the case and keeping in mind, the ratio of the Apex Court's judgment in the case of Union of India vs. Shiv Shankar Keshari (supra) larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/ State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail.

¶10Let the applicant-Moolchand, 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.

¶11In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

¶12It 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 :- 9.11.2023 Ravi Kant (Krishan Pahal, J.) High Court of Judicature at Allahabad