Bajrang Yadav v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko

Court No. - 14 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13377 of 2023 Applicant :- Bajrang Yadav Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. Counsel for Applicant :- Karunesh Singh,Vijay Pratap Singh Counsel for Opposite Party :- G.A. Hon'ble Mohd. Faiz Alam Khan,J.

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

¶2Learned A.G.A. informs that he has procured complete instruction in the matter including up-to-date case diary.

¶3Heard learned counsel for the accused-applicant as well as learned A.G.A. for the State and perused the record.

¶4This bail application has been moved by the accused/applicant-Bajrang Yadav for grant of bail, in Case Crime No. 76 of 2023, under Section 8/21 of the Narcotic Drugs & Psychotropic Substances Act, Police Station Jahangirabad, District Barabanki, during trial.

¶5Learned counsel for the accused-applicant while pressing the bail application submits that the applicant has been falsely implicated in this case and no contraband as claimed by the prosecution has been recovered from the possession of the applicant.

¶6It is further submitted that the secret information allegedly received from the informer has not been reduced into writing either before or after recovery/arrest of the applicant, thus, mandatory provision of Section 42 of N.D.P.S. Act has been violated. It is also submitted that Section 50 of the N.D.P.S. Act has also not been complied in letter and spirit and the right to be searched before the gazetted officer or Magistrate has not been communicated, as the same was required by established principle of law.

¶7It is also submitted that no serious efforts have been made by the police party to procure independent public witness and the absence of independent public witness casts a cloud of suspicion over the whole prosecution story and even if the case of the prosecution is believed, only 100 grams of 'morphine' is shown to have been recovered from the possession of the applicant, which is much below the commercial quantity i.e. 250 grams.

¶8It is further submitted that apart from the instant case, the criminal history of four cases is being alleged against the applicant, however, the same has been explained in para no.21 of the bail application as well as in para no.3 of the supplementary affidavit filed today. In one of the cases pertaining to Case Crime No. 628 of 2018 the bail order has been enclosed at Page No.7 of the supplementary affidavit and the two cases were pertaining to Section 109/41 Cr.P.C. and the same have lost its efficacy by efflux of time and the another case was pertaining to Section 60 of the Excise Act, which is a bailable offence, however, the applicant could not arrange the copy of bail order with regard to that case.

¶9It is next submitted that applicant is in jail in this case since

31.03.2023 and there is no apprehension that after being released on bail he may flee from the course of law or may otherwise misuse the liberty.

¶10Learned A.G.A., however, opposes the prayer of bail of the applicant on the ground that the applicant has committed an heinous offence and having regard to the material/evidence available against the applicant, he is not entitled to be released on bail

¶11Having heard learned counsel for the parties and having perused the record, it is evident that only 100 grams of 'morphine' is shown to have been recovered from the possession of the applicant. Commercial quantity of the 'smack/morphine' is more than 250 grams, thus, the 'smack/morphine' allegedly recovered from the applicant is much below the commercial quantity and the twin stringent conditions mentioned under Section 37(1)(b) of the N.D.P.S. Act would not attract in this case. Various submissions have been raised by learned counsel for the applicant in order to show that mandatory provisions of the N.D.P.S. Act has been violated and the recovery, as shown by the police is highly suspicious and doubtful and could not be believed. Nothing has been shown on behalf of the prosecution, which may persuade this Court to further detain the applicant in jail. Applicant is in jail in this case since 31.03.2023. The criminal history of four cases is being shown against the applicant, however, the same has been adequately explained and the presence of the applicant may be secured before the trial court by placing adequate conditions/restrictions.

¶12Having regard to the overall facts and circumstances of the case and keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, submissions of the learned counsel for the parties and without expressing any opinion on the merits of the case, I am of the considered view that applicant has made out a case for bail. The bail application is thus allowed.

¶13Let the accused/applicant-Bajrang Yadav involved in above-mentioned case, be released on bail on his furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:-

(i) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial.

(ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.

(iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

¶14In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

¶15Identity, status and residence proof of the applicant and sureties be verified by the Court concerned before the bonds are accepted.

¶16Observations made herein-above by this court are only for the purpose of disposal of this bail application and shall not be construed as an expression on the merits of the case. Order Date :- 9.11.2023 Praveen High Court of Judicature at Allahabad, Lucknow Bench