Swastika v. State of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko

Court No. - 14 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11136 of 2023 Applicant :- Swastika Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko Counsel for Applicant :- Sudhaker Prakash Counsel for Opposite Party :- G.A. Hon'ble Mohd. Faiz Alam Khan,J.

¶1Heard Shri Sudhaker Prakash, learned counsel for the accused/applicant as well as learned A.G.A. for the State and perused the record.

¶2This bail application has been moved by the accused/applicant-Swastika for grant of bail, in Case Crime No. 446/2023, under Sections 28(a)/29 N.D.P.S. Act, Police Station Gomti Nagar, District Lucknow, during trial.

¶3Learned counsel for the accused-applicant while pressing the bail application submits that the accused-applicant has falsely been implicated in this case. She is a lady and has not committed any offence.

¶4It is further submitted that the prosecution story as narrated in the First Information Report is to the tune that on 16.7.2023 a video became viral on social media platform wherein some boys and girls were shown counting big amount of currency notes with a bottle of wine and Hookah and in this regard the police party had deputed informers to know the truth of that viral video and when the police party was present near Ambedkar Park crossing, the police informer informed that a girl and two boys shown in the viral video are residing in SBG Guest Inn Hotel and they are indulged in the contraband trade. On this information the police party arrived at SBG Guest Inn Hotel and intercepted one boy shown in the video who told his name as 'Tarun' and on inquiry he informed that he is residing in the hotel with his friend Pankaj in Room No. 103 and they were intending to celibrate party for which their other companions 'Pankaj' and 'Swastika' (applicant) had gone along with driver Ajmal to purchase necessary items for the party and at that time a girl arrived with a boy to whom the Tarun identified as Swastika and Pankaj and they informed that they are residing in Room No. 103 and had invited their other friends to celibrate a party and on 16.7.2023 also they had launched a party in Room No. 104 of the same Hotel.

¶5It is also the case of prosecution that co-accused Arun informed that he is a supplier of contraband/ drugs through mobile app in various countries and he collected the money after selling the same and it was the same money which was shown in the viral video with his brother Lucky and when they came to know that the police is inquiring about the same co-accused Arun asked them to take Rs. 7,00,000/- with them and remain away for some time and hence they were residing at various hotel by concealing their identity. On the pointing of these accused persons Rs. 6,57,000/- was recovered from a vehicle which was parked outside the hotel.

¶6Highlighting the above facts, it is vehemently submitted that no contraband etc. has been recovered from the possession of the applicant and Rs. 6,57,000/- has been recovered from the vehicle which was parked outside the hotel and the applicant was not having any connection with the same and Rs. 6,57,000/- recovered from the vehicle is also not connected with the applicant.

¶7It is further submitted that in fact on 16.7.2023 the applicant was in a hotel with her friends where they were enjoying a party and had filmed a video and on 22.7.2023 the applicant was called by the police and arrested. However her arrest has been shown in a wrong way by the police i.e. from outside the hotel.

¶8It is also submitted that even if the case of the prosecution is taken on its face, it will emerge that the applicant was celebrating with her friends and even if the confessional statement of the accused persons are taken on their face there is no role of the applicant pertaining to involvement in the contraband trade and apart from the confessional statement of the accused persons and the applicant which could not be proved against her by virtue of bar contained under Section 26 of the Indian Evidence Act, there is no iota of evidence against him.

¶9It is also submitted that the applicant is in jail in this case since 23.7.2023 and she is not having any criminal history and there is absolutely no evidence available against the applicant and the money which has been recovered from the vehicle may also not be connected with the applicant as neither the vehicle was owned by her nor the money recovered belongs to her. She is a lady and there is no apprehension that the accused-applicant after release on bail, may flee from the process of law or may otherwise misuse the liberty.

¶10Learned counsel for the applicant has relied on the law laid down by the Hon'ble Supreme Court in State of West Bengal VS. Rakesh Singh @ Rakesh Kumar Singh reported in 2022 SCC OnLine SC 828 and Tofan Singh Vs. State of Tamil Nadu reported in MANU/SC/0797/2020.

¶11Learned A.G.A. on the other hand submits that the matter pertains to Sections 27(a)/29 of the N.D.P.S. Act and with regard to these penal offences the twin conditions enumerated in Section 37 1(b) of the N.D.P.S. Act would attract. It is vehemently submitted that a viral video was investigated by the police and the applicant and other co-accused persons were apprehended and they confessed to have been indulged in the illegal contraband business and on their pointing Rs.6,57,000/- has also been recovered.

¶12Having heard learned counsel for the parties the prosecution story appears to be that on the basis of a viral video wherein some boys and girls are seen counting currency notes and a bottle of liquor and 'Huqqa' is also shown placed beside them, the matter was inquired and on a tip off given by a police informer one Tarun was intercepted in a hotel and he told that a room was booked in that hotel by his associate Pankaj and he (Pankaj) and applicant had gone to buy some stuff from the market with driver Ajmal. Applicant and one Pankaj Sonkar also stated to have arrived there and they also confessed that they are residents of Lucknow and have come to make a party in the room of the hotel which was booked by co-accused Pankaj and they have also invited their other friends. Regarding viral video they all confessed that on 16.7.2023 room no.104 was booked by one Arun and Luccky and they were also invited to celebrate a party and when they were counting currency notes brought by Arun and Luccky the said video was filmed and was also made viral by co-accused Arun. Co-accused Arun has also confessed that he is indulged in illegal contraband trade and used to supply narcotics in foreign countries through online application and the money earned by selling the same is brought in India through other persons. Tarun also told that Aryan was telling him that he is having 'Ganja' with him and if any body is in need of the same he will arrange.

¶13It is also confessed that when the police was inquring about the viral video, co-accused Aryan had given them Rs. 7,00,000/- and a mobile phone with the instructions to hide somewhere and it is in pursuance of the same they were residing there. Rs. 6,57,000/- were recovered from a vehicle parked outside the hotel, wherein the Driver Ajmal was found sitting. A mobile phone is also shown recovered from the applicant. Tarun and Pankaj also confessed that they are also indulged in illegal trade of narcotics with Aryan.

¶14The allegations which have been levelled against the applicant is only of partying with other co-accused persons. No allegation of indulging in narcotic trade has been levelled against her by any of the co-accused in his confessional statement. Other accused persons also appears to have confessed that they will get the 'Gaja' recovered, however, from the room of the hotel or from anywhere no narcotic or any other illegal article is shown to have been recovered. The role of indulging in illegal narcotic trade has been attributed to co-accused Aryan, Arun, Luccky and Ansh in association with Tarun and Pankaj. The accused persons are shown to have talked frequently with each other on their mobile phones. There is nothing in the counter affidavit field by the State which may suggest that any online application has been found in the mobile phone of the applicant, whereby the online drugs supply may be made, nor any co-accused has confessed to this effect and her role has been confined only of partying with other co-accused persons. The charge sheet in this case has also been submitted. The role of instant applicant appears to be distinguishable from the role of other co-accused persons. She is also not having any criminal history and having regard to all the facts and circumstances mentioned above the satisfaction as required under Section 38 (1) (b) of N.D.P.S. Act stands satisfied, so far as applicant is concerned.

¶15In result bail application of the applicant is hereby allowed.

¶16Let the accused/applicant-Swastika involved in above-mentioned case, be released on bail on her 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.

(iv). 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;

(v). In case, the applicant misuses the liberty of bail 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; and

(vi) 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

¶17In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

¶18Identity, status and residence proof of the applicant and sureties be verified by the Court concerned before the bonds are accepted.

¶19Observations 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 :- 18.11.2023 Muk High Court of Judicature at Allahabad, Lucknow Bench