Ashish Singh @ Chhote v. State of U.P

Court No. - 77 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 50801 of 2023 Applicant :- Ashish Singh @ Chhote Opposite Party :- State of U.P. Counsel for Applicant :- Suresh Dhar Dwivedi 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 under Section 439 Cr.P.C. has been filed on behalf of the applicant in Case Crime No. 732 of 2023, under Sections 8/21 of N.D.P.S. Act, Police Station Tilhar, District-Shahjahanpur, 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. It is submitted that nothing has been recovered from the possession of the applicant and alleged recovered morphin of 60 gram is a planted recovery which is less than the commercial quantity. It is further submitted that there is no public witness of the alleged recovery. It is next submitted that mandatory provisions of Section 50 of the NDPS Act has not been complied with. It is contended that the applicant has no criminal history, as mentioned in paragraph-16 of the affidavit filed in support of bail application 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. Applicant is languishing in jail since 29.09.2023 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 and shall co-operate in the trial.

¶4On the other hand, learned AGA has opposed the prayer of bail but could not controvert the aforesaid arguments as advanced by learned counsel for the applicant.

¶5Considering the facts and circumstances of the case and considering the fact that alleged recovered morphin of 60 gram which is less than the commercial quantity, there is no public witness of the alleged recovery, mandatory provisions of Section 50 of the NDPS Act has not been complied with, applicant is languishing in jail since 29.09.2023 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 and without expressing any opinion on the merits of the case, accused-applicant is liable to be released on bail.

¶6Let applicant Ashish Singh @ Chhote 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 :- 28.11.2023 Vikram High Court of Judicature at Allahabad