Mohd Kaish Khan@ Guddu v. State of U.P

Court No. - 74 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42994 of 2023 Applicant :- Mohd Kaish Khan@ Guddu Opposite Party :- State of U.P. Counsel for Applicant :- Mohammad Zunaid Khan Counsel for Opposite Party :- G.A. Hon'ble Vivek Varma,J.

¶1Learned AGA for the State submits that the instructions have been received and he has no objection in case the bail application is decided on merits.

¶2Heard learned counsel for the applicant and Sri Anupam Anand, learned brief holder for the State-opposite party.

¶3The instant bail application, under Section 439 Cr.P.C., has been filed with a prayer to enlarge the applicant on bail in Case Crime No. 132 of 2023, under Section 8/21 N.D.P.S. Act, Police Station-Dildarnagar, District Ghazipur, during the pendency of trial.

¶4Counsel for the applicant submits that the applicant has been falsely implicated in the instant case. False recovery of 350 gm. heroine has been shown from the applicant. There is no independent witness to the recovery. The alleged heroine were weighed along with the packing material. No accurate scientific instruments were used for weighment. The mandatory provisions of Sections 42, 50 and 51 of the N.D.P.S. Act have not been complied with. It is next contended that identically placed co-accused Rakibur Hassan and Mohd. Amar Khan have been granted bail by this Court vide orders dated

28.10.2023 and 02.12.2023 passed in Criminal Misc. Bail Application No. 44017 of 2023 and 44039 of 2023. The applicant claims parity. The criminal history of the applicant has been explained in para 11 of the affidavit. The applicant is in jail since 20.08.2023 and in case, he is enlarged on bail, he will not misuse the said liberty.

¶5Learned AGA has opposed the prayer for bail but could not satisfactorily dispute the aforesaid submissions from the record.

¶6Having heard counsel for the parties and having perused the record, I am of the prima facie view that the mandatory provisions of Sections 42, 50, 51 and 52-A of N.D.P.S. Act have not been complied with. Inventory of the seized contraband was not duly certified by the Magistrate. Identically placed co-accused Rakibur Hassan and Mohd. Amar Khan have been granted bail by this Court. Apart from the instant case, the applicant is not involved in any case under the NDPS Act, as such there are reasonable grounds to believe that the applicant shall not indulge himself in other cases of similar nature. Further, the applicant has remained confined for more than three months and after submission of the charge-sheet there is no hope of early conclusion of trial, more so when no reasonable apprehension has been brought to the fore by the State that the applicant, if enlarged on bail, would either tamper with the evidence or delay the trial or intimidate the witness, without commenting on the merits of the case, I am of the opinion that the applicant is entitled to be enlarged on bail.

¶7Let the applicant Mohd. Kaish Khan @ Guddu involved in the aforesaid case crime 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 the conditions that he:

(i) shall appear on the date fixed by the trial court;

(ii) shall not tamper with the prosecution evidence; and,

(iii) shall not pressurize the prosecution witnesses.

¶8In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court. Order Date :- 7.12.2023 Lbm/- High Court of Judicature at Allahabad