Mo. Habib v. State of U.P. Thru. Prin. Secy. Home U.P. Lko

Court No. - 27 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13577 of 2023 Applicant :- Mo. Habib Opposite Party :- State Of U.P. Thru. Prin. Secy. Home U.P. Lko. Counsel for Applicant :- Anil Kumar Tiwari 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 Sri Anil Kumar Tiwari, learned counsel for the applicant and Sri Ran Vijay Sinigh, 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.161 of 2023 under section 8/21 N.D.P.S. Act, Police Station Patranga District Faizabad/Ayodhya.

¶4It has been submitted by learned counsel for the applicant that 65 grams of Morphine is alleged to have been recovered from the possession of the applicant which is below of commercial quantity. It has been submitted that the provision of section 50 of NDPS Act is totally violated because search of the applicant has not been done before the Gazetted Officer. He has further submitted that there is no independent eye witness of search and seizure and false recovery of contraband substance has been made. Learned counsel for the applicant has explained the criminal history of the applicant in para-19 of the affidavit filed in support of the bail application as well as para-3 of the supplementary affidavit filed today. It has also been submitted by learned counsel for the applicant that the applicant has no previous criminal history of NDPS Act. The applicant is in jail since 30.07.2023.

¶5Learned A.G.A. though opposed the prayer for bail but could not dispute the aforesaid facts.

¶6Without 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 the recovered contraband substance is below commercial quantity, non compliance of mandatory provision of section 50 of the NDPS Act, therefore, I am of the opinion that the applicant is entitled to be released on bail.

¶7Let the applicant, namely, Mo. Habib, 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 :- 17.11.2023 dk/ High Court of Judicature at Allahabad, Lucknow Bench