Sarik and Another v. State of U.P

Court No. - 72 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 53756 of 2023 Applicant :- Sarik And Another Opposite Party :- State of U.P. Counsel for Applicant :- Ashok Kumar Singh,Pratibha Singh Counsel for Opposite Party :- G.A. Hon'ble Krishan Pahal,J.

¶1List has been revised.

¶2Heard Ms. Pratibha Singh, learned counsel for the applicants, Sri Varun Pratap Singh, learned A.G.A. for the State and perused the material placed on record.

¶3Applicants seek bail in Case Crime No.289 of 2023, under Section 307, 34 I.P.C., 3/25 Arms Act and 8/20 NDPS Act, Police Station-Khutahan, District Jaunpur, during the pendency of trial.

¶4As per the allegations of the FIR, the police is stated to have apprehended the applicants on 30.10.2023, whereby 20 Kg. Ganja is said to have been recovered from the conscious possession of the applicants and other co-accused persons from vehicle no. UP 62CH 5152.

¶5Learned counsel for the applicants has argued that the applicants are absolutely innocent and have been falsely implicated in the present case with a view to cause unnecessary harassment and to victimize them. It is police party firing no injury case. The matter falls below the commercial quantity as it is exactly 20 Kg. and the commercial quantity is defined as above 20 Kg. Learned counsel for the applicants has stated that there is no compliance of mandatory provision of Section 52-A of the N.D.P.S. Act. There is no criminal history of the applicants. The applicants are languishing in jail since

30.11.2023. In case, the applicants are released on bail, they will not misuse the liberty of bail.

¶6Learned A.G.A. has vehemently opposed the bail application.

¶7In Arif Khan @ Agha Khan v. State of Uttarakhand (2018) 18 SCC 380, in which the Apex Court held that Section 50 of the NDPS Act mandatorily required search of the suspect/accused to be carried out in the presence of a magistrate or Gazetted officer, even if such a suspect/accused had waived the right to be taken to a magistrate or Gazetted Officer.

¶8Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, severity of punishment as well as totality of facts and circumstances, at this stage without commenting on the merits of the case, I find it a fit case for bail.

¶9Let the applicants-Sarik and Amzad Sekh, who is involved in aforementioned case be released on bail on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.

(i) The applicants shall file an undertaking to the effect that they shall not seek any adjournment on the date fixed for evidence when the witnesses are present in Court.

(ii) The applicants shall remain present before the Trial Court on each date fixed, either personally or through their counsel. In case of their absence, without sufficient cause, the Trial Court may proceed against them under Section 229-A IPC.

(iii) In case, the applicants misuse the liberty of bail during trial and in order to secure their presence proclamation under Section 82 Cr.P.C., may be issued and if applicants fail to appear before the Court on the date fixed in such proclamation, then, the Trial Court shall initiate proceedings against them, in accordance with law, under Section 174-A IPC.

(iv) The applicants shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the Trial Court absence of the applicants 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 them in accordance with law.

¶10In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

¶11It is made clear that observations made in granting bail to the applicants shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses. Order Date :- 15.12.2023 Ravi Kant (Krishan Pahal, J.) High Court of Judicature at Allahabad