Shivshanker Tiwari v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko

Court No. - 14 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13695 of 2023 Applicant :- Shivshanker Tiwari Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. Counsel for Applicant :- Ram Kinkar Upadhyay Counsel for Opposite Party :- G.A. Hon'ble Mohd. Faiz Alam Khan,J.

¶1Learned A.G.A. informs that he has procured complete instructions in the matter including upto date/complete case diary.

¶2Heard learned counsel for the accused-applicant as well as learned A.G.A. for the State and perused the record.

¶3This bail application has been moved by the accused/applicant-Shivshanker Tiwari for grant of bail, in Case Crime No. 0183 of 2023, under Section 8/21 N.D.P.S. Act, Police Station Kumarganj, District Ayodhya, during trial.

¶4Learned 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 and the whole story, as shown by the prosecution in the F.I.R./recovery-memo is false, concocted and could not be believed.

¶5It is further 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.

¶6It 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 23 grams of 'smack' is shown to have been recovered from the possession of the applicant, which is far below the commercial quantity i.e. 250 grams.

¶7It is further submitted that the applicant is in jail in this case since 02.10.2023 and he is not having any criminal history 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.

¶8It is also submitted that the sample, as shown in the recovery-memo, has not been taken in compliance of the guidelines issued by the circular of the Department of Revenue, Ministry of Finance of the year 1989 and there is vacuum in the link evidence with regard to the safe custody of the sample and, thus, the mandatory provisions with regard to the taking of samples, its preservation have been violated.

¶9Learned A.G.A., however, opposes the prayer of bail of the applicant on the ground that 23 grams of 'smack' has been recovered from the possession of the applicant and having regard to the quantity of 'smack' recovered from the possession of the applicant, he is not entitled to be released on bail.

¶10Having heard learned counsel for the parties and having perused the record, it is reflected that applicant is shown to have been arrested while possessing 23 grams of 'smack'. The minimum commercial quantity of 'smack' starts from 250 gram. Having regard to the definition of the commercial quantity contained under Section 2(vii-a) of the N.D.P.S. Act, any quantity which is more than the minimum commercial quantity would be deemed as commercial quantity. Thus, 23 grams. of 'smack' shown to have been recovered from the applicant is a quantity, which is lesser than the commercial quantity, which is 250 grams and, therefore, the twin conditions, as enumerated 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 the arrest and recovery of contraband is highly doubtful in absence of independent public witnesses, non-compliance of Section 52-A of the N.D.P.S. Act. Applicant is in jail in this case since

02.10.2023 without any criminal antecedents and the presence of the applicant may be secured before the trial court by placing adequate conditions/restrictions.

¶11Having 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.

¶12Let the accused/applicant-Shivshanker Tiwari 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.

¶13In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

¶14Identity, status and residence proof of the applicant and sureties be verified by the Court concerned before the bonds are accepted.

¶15Observations 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 :- 20.11.2023 Praveen High Court of Judicature at Allahabad, Lucknow Bench