Vivek Kumar v. State of U.P

Court No. - 74 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10073 of 2023 Applicant :- Vivek Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Ayush Mishra,Anil Kumar,Sunil Kumar Misra Counsel for Opposite Party :- G.A. Hon'ble Vivek Varma,J.

¶1Heard learned counsel for the applicant and Sri Nagendra Kumar Mishra, learned Brief Holder for the State-opposite party.

¶2The instant bail application under Section 439 Cr.P.C. has been filed with the prayer to enlarge the applicant on bail in Case Crime No. 65 of 2023, under Sections 8/20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station Shikohabad, District Firozabad during the pendency of trial.

¶3Learned counsel for the applicant contends that the applicant has been falsely implicated in the instant case. False recovery of 92.100 kg. (3 bundles) Ganja has been shown from a Scorpio vehicle. There is no independent witness to the alleged recovery. The mandatory provisions of Sections 42, 50, 51 and 52-A of the N.D.P.S. Act have not been complied with. Only one sample was sent to the Forensic Science Laboratory for examination. The procedure of sampling is in violation of the provisions conferred under Rules 8, 9, 10 and 11 of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022. It is next contended that the other three co-accused Golu @ Gautam, Ajay Kushwaha and Haseen Khan, who were also in the car, have been granted bail by this Court in Criminal Misc. Bail Application Nos. 14410 of 2023, Golu @ Gautam v. State of U.P., 13082 of 2023, Ajay Kushwaha v. State of U.P., and 14067 of 2023, Haseen Khan v. State of U.P., vide orders dated 25.05.2023, 26.05.2023 and 12.05.2023 respectively. The applicant is in jail since 23.01.2023 having no criminal history and in case he is enlarged on bail, he will not misuse the said liberty.

¶4Learned Brief Holder has opposed the prayer for bail but could not satisfactorily dispute the aforesaid submissions from the record.

¶5Having heard learned counsel for the parties and after perusal of the record, this Court prima facie finds that the mandate of Sections 42, 50, 51 and 52A of the N.D.P.S. Act has not been followed. There is no independent witness to the alleged recovery. Sampling was not done in the presence of the Magistrate. Only one sample was sent for forensic examination. The said fact stands corroborated by the FSL report dated 21.02.2023 annexed as Annexure-CA-1 to the counter affidavit. The inventory of the seized contraband was not certified by the Magistrate. Thus, the procedure of sampling adopted is in violation of Rules 8, 9, 10 and 11 of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022. Identically placed three co-accused Golu @ Gautam, Ajay Kushwaha and Haseen Khan, who were also in the same car, have been granted bail by this Court. The applicant has no criminal history apart from this case. Hence, there are reasonable grounds to believe that the applicant shall not indulge himself in other cases of like nature. Moreover, the applicant has remained confined for more than ten and half months and after submission of the charge-sheet there is no hope of early conclusion of trial and 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, therefore, without commenting on the merits of the case, I am of the opinion that the applicant is entitled to be enlarged on bail.

¶6Let the applicant-Vivek Kumar, involved in the aforesaid case, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of 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.

¶7In 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 :- 14.12.2023 SKT/- High Court of Judicature at Allahabad