Amir v. State of U.P

Court No. - 72 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48552 of 2023 Applicant :- Amir Opposite Party :- State of U.P. Counsel for Applicant :- Sarvjeet Kumar,Bhanu Prakash Tiwari Counsel for Opposite Party :- G.A. Hon'ble Krishan Pahal,J.

¶1List has been revised.

¶2Heard Sri Gaurav Srivastava, Advocate holding brief of Sri Bhanu Prakash Tiwari, learned counsel for the applicant, Sri R.P. Patel, learned A.G.A. for the State and perused the material placed on record.

¶3Applicant seeks bail in Case Crime No. 506 of 2023, under Section 8, 18 of The Narcotic Drugs And Psychotropic Substances Act, 1985, Police Station-Kant, District Shahjahanpur, during the pendency of trial.

¶4As per the allegations of the FIR, 2 kg. of opium is stated to have been recovered from the possession of the applicant on

5.9.2023 by the police.

¶5Learned counsel for the applicant has argued 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. Learned counsel has stated that the said contraband is below the commercial quantity and there is no compliance of mandatory provision of Section 52-A of the N.D.P.S. Act. There is no criminal antecedent of the applicant and he is languishing in jail since 5.9.2023. In case, the applicant is released on bail, he will not misuse the liberty of bail.

¶6Per contra, learned A.G.A. has vehemently opposed the bail application.

¶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-Amir, 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 not tamper with evidence.

(ii) 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 :- 9.11.2023 Vikas [Krishan Pahal, J.] High Court of Judicature at Allahabad