Nikhil Sharma v. State of U.P

Court No. - 77 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 50443 of 2023 Applicant :- Nikhil Sharma Opposite Party :- State of U.P. Counsel for Applicant :- Neha Tyagi,Akash Tyagi Counsel for Opposite Party :- G.A. Hon'ble Mrs. Renu Agarwal,J.

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

¶2The present application under Section 439 Cr.P.C has been filed seeking bail in Case Crime No.700 of 2023 under Sections 8/20 NDPS Act Police Station GRP District Jhansi.

¶3Learned counsel for the accused-applicant submitted that the applicant is innocent and has been falsely implicated in the instant case due to ulterior motive. 8kg and 205 gm. ganja is alleged to have been recovered from the hand bag being carried by the applicant. The weight of the recovered substance is below the notified commercial quantity. The notified commercial quantity of the said substance is 20kg. The weight of the recovered substance as stated in the FIR is unreliable as accurate scientific instruments were not used for weighment. No forensic science laboratory report has been submitted which confirms that the substance allegedly recovered is prohibited under the NDPS Act. There is no independent witness to the alleged recovery. The mandatory provisions of Sections 41, 50, 52, 50, 52A, 53, 57 of the NDPS Act and 100 Cr.P.C has been violated. Apart from the instant case the applicant has no criminal history as disclosed in paragraph-21 of the affidavit filed in support of the bail application. The applicant is languishing in jail since 21.10.2023, in case she is enlarged bail, she will not misuse the liberty and would cooperate in the trial proceedings.

¶4On the other hand, learned AGA has opposed the prayer for bail but could not dispute the aforesaid facts.

¶5Considering the facts and circumstances of the case and taking into account that weight of the recovered substance is below the notified commercial quantity, mandatory provisions of Section 41, 50, 52, 50, 52A, 53, 57 of the NDPS Act and 100 Cr.P.C have been violated, no forensic science laboratory report has been submitted which confirms that the substance allegedly recovered is prohibited under the NDPS Act, the applicant has no criminal history that goes to show the conduct of the applicant that he is unlikely to commit any offence after being released on bail and given the benefit of Section 37(1) (b) (ii) of the NDPS Act and without expressing any opinion on the merit of the case, it would be appropriate to enlarge the accused-applicant on bail.

¶6The bail application is allowed.

¶7Let applicant Nikhil Sharma be released on bail in the above case crime number 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 :- 5.12.2023 Nadeem High Court of Judicature at Allahabad