Shani Jaiswal v. State of U.P

Court No. - 77 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 50112 of 2023 Applicant :- Shani Jaiswal Opposite Party :- State of U.P. Counsel for Applicant :- Krishna Nand Singh Counsel for Opposite Party :- G.A. Hon'ble Mrs. Renu Agarwal,J.

¶1Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

¶2The present first bail application has been filed on behalf of the applicant in Case Crime No. 118 of 2023 under Sections 8/20 N.D.P.S. Act Police Station Rajghar, District Mirzapur with the prayer to enlarge him on bail.

¶3Learned counsel for the accused-applicant submitted that the applicant is innocent and has been falsely implicated in the instant case due to malafide intentions. As per the F.I.R., 6.280 Kg of Ganja is said to have been recovered from the possession of the applicant. It is submitted that nothing has been recovered from the possession of the applicant and the recovery is a planted one. It is submitted that the alleged recovered Ganja is less than the commercial quantity. It is further submitted that mandatory provisions as laid under Sections 42/43/50/50(a)/52 and 55 of the N.D.P.S. Act are not complied with. It is next contended that similarly situated co-accused person, Suresh Chandra Jaiswal from whose possession 6.095 Kg of Ganja is said to have been recovered has already been enlarged on bail by co-ordinate Bench of this Court vide order dated

17.10.2023 passed in Criminal Misc. Bail Application No. 42882 of 2023. The applicant is languishing in jail since 21.08.2023 having no criminal history to his credit. It is contended that applicant has no criminal history to his credit and there is no chance of absconding or tampering with the evidence, hence, benefit of Section 37 of the NDPS Act must be given to the applicant It is lastly contended that since the role of the present applicant is identical to that of co-accused, who has already been enlarged on bail, present applicant is also entitled to be enlarged on bail on the ground of parity and if he is granted the liberty of bail he will not misuse the same and he is ready to furnish his sufficient sureties, bonds and personal bonds.

¶4On the other hand, learned AGA has vehemently opposed the prayer for bail but could not controvert the fact that identically situated co-accused has been enlarged on bail.

¶5Considering the fact that the alleged recovered Ganja is less than the commercial quantity, applicant is languishing in jail since 21.08.2023 having no criminal history to his credit which goes to show that the applicant is not a usual offender, there are reasonable ground to believe that applicant shall not indulge himself in another case of like nature in compliance of Section 37(1)(b)(ii) of the NDPS Act coupled with the fact that identically situated co-accused has been enlarged on bail and without expressing any opinion on the merits of the case, accused-applicant is liable to be released on bail.

¶6Let applicant Shani Jaiswal be released on bail in the above case crime number and on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of Court concerned with the following conditions :-

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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 of the Indian Penal Code.

(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. is issued and the 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 of the Indian Penal Code.

(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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.

(v) The applicant shall also furnish an undertaking from the sureties that the properties (movable/immovable) which are the basis of accepting the surety, shall not be disposed of by them till the conclusion of trial.

(vi) The applicant shall also give an undertaking to the effect that he will not change his address without prior intimation to the trial court concerned. (Renu Agarwal,J.) Order Date :- 23.11.2023 Karan High Court of Judicature at Allahabad