Akbar Ali v. State of U.P. Thru. Prin. Secy. Home Lko

Court No. - 27 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11121 of 2023 Applicant :- Akbar Ali Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Janendra Kumar Verma Counsel for Opposite Party :- G.A. Hon'ble Brij Raj Singh,J.

¶1Supplementary affidavit filed on behalf of the applicant, is taken on record.

¶2Heard learned counsel for the applicant and Sri Ran Vijay Singh learned A.G.A. for the State.

¶3The present bail application has been filed by the applicant with a prayer to enlarge him on bail in Case Crime No.153 of 2023 under section 8/22 NDPS Act, Police Station Tikuniya District Lakhimpur Kheri.

¶4It has been submitted by learned counsel for the applicant that 118 gram Alprazolam powder is alleged to have been recovered from the possession of the applicant which is below the commercial quantity. He has further submitted that there is no independent eye witness of search and seizure and false recovery of contraband substance has been made. It has been pleaded in the supplementary affidavit that occurrence took place on

27.07.2023 and the recovery memo was prepared on the same day but the sample was send in the office of Forensic Science Laboratories on 08.08.2023 i.e. after 11 days of occurrence.

¶5It is also submitted that it was complete violation of Circular No. 1/88 dated 15.3.1988 of paragraph 1.13 of Standing Order No.1/88 dated 15.3.1988 which clearly provides that sample must be dispatched to the FSL within 72 hours of the seizure. Learned counsel for the applicant has also relied on a law report of Hon'ble Punjab and Haryana High Court, Narayan Vs. State of Haryana 1996 SCC Online PH 1153 and submits that non-observation/ adherence to this circular would render the recovery as doubtful. He has submitted that such a long lapse of time once the sample has been collected, there is possibility in tampering the evidence.He has also submitted that the said fact has been admitted in C.A-4 of the counter affidavit filed by the State and the Investigating Officer has also admitted in case diary that sample was sent for FSL on 08.08.2023. The applicant has no previous criminal history and there is no possibility of fleeing away from the judicial process or tempering with the witnesses and in case, the applicant is enlarged on bail, he shall not misuse the liberty of bail. The applicant is in jail since 27.07.2023.

¶6Learned A.G.A. though opposed the prayer for bail but could not dispute the fact that sample of contraband substance was sent to FSL after 11 days.

¶7Without expressing any opinion on the merits of the case and after hearing learned counsel for the parties and looking into overall facts and circumstances of the case as well as the argument that there is violation of Circular No. 1/88 dated 15.3.1988 of paragraph 1.13 of Standing Order No.1/88 dated 15.3.1988 which clearly provides that sample must be dispatched to the FSL within 72 hours of the seizure,, therefore, I am of the opinion that the applicant is entitled to be released on bail.

¶8Let the applicant, namely, Akbar Ali, 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. It 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 :- 30.10.2023 dk/ High Court of Judicature at Allahabad, Lucknow Bench