Salman v. State of U.P. Thru. Addl. Chief Secy. Home Deptt. Civil Secrett. Lko. U.P

Court No. - 27 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10093 of 2023 Applicant :- Salman Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home Deptt. Civil Secrett. Lko. U.P. Counsel for Applicant :- Anil Kumar Yadav,Manoj Kumar Counsel for Opposite Party :- G.A. Hon'ble Brij Raj Singh,J.

¶1Supplementary afÏdavit filed by learned counsel for applicant is taken on record.

¶2Heard Shri Anil Kumar Yadav, learned counsel for the applicant as well as Shri Vishwas Saraswat, learned A.G.A. for the State and perused the record.

¶3This bail application has been filed seeking release of accused/applicant Salman on bail, in Case Crime No. 770 of 2023, under Sections 8/21 Narcotic Drugs and Psychotropic Substances Act, 1985. Police Station Kotwali Nagar, District Barabanki.

¶4Learned counsel for applicant submitted that 150 grams contraband (brown sugar) is alleged to be recovered from the possession of the applicant which is below commercial quantity. There is no independent eye witness of the alleged recovery and he has further submitted that no option was given to the applicant to be searched before the Gazetted OfÏcer, therefore Section 50 of the NDPS Act has not been complied with. He further stated that co-accused namely Ibadul Haq @ Munna Tailor, from whose possession 200 grams of brown sugar has been recovered, has already been granted bail in Criminal Misc. Bail Application No. 10271 of 2023 vide order dated 17.08.2023.

¶5Learned counsel for applicant further submitted that the case of the applicant is at par with the case of the applicant and is covered with the factum of parity, as such the applicant is also entitled to be enlarged on bail. Learned counsel further submitted that the applicant has criminal history of five cases which has been satisfactorily explained by him in paragraph-12 of the bail application and he is languishing in jail since 06.07.2023.

¶6Learned A.G.A. has opposed the prayer for grant of bail, but could not dispute the fact that co-accused Ibadul Haq @ Munna Tailor has been granted bail.

¶7Considering the facts and circumstances of the case, perusing the record and also considering the nature of allegations, arguments advanced by the learned counsel for the parties, the argument that Section 42 and Section 50, of the NDPS Act have not complied with and also the fact that there was no independent eye witness at the time of recovery of contraband, and the contraband is below commercial quantity, looking into the fact that the co-accused Ibadul Haq @ Munna Tailor has already been granted bail, I find it to be a fit case for grant of bail.

¶8Accordingly, the bail application is allowed.

¶9Let the accused/applicant Salman involved in above-mentioned case, be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned subject to 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 sufÏcient cause, the trial court may proceed against her 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 sufÏcient 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.

¶10It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The Trial Court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything in this order. Order Date :- 27.10.2023 DiVYa High Court of Judicature at Allahabad, Lucknow Bench