Uma Shankar Sharma v. State of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko

Court No. - 14 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13913 of 2023 Applicant :- Uma Shankar Sharma Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko Counsel for Applicant :- Manoj Kumar Singh 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 case diary of the case.

¶2Heard Shri Manoj Kumar Singh, 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-Uma Shankar Sharma for grant of bail, in Case Crime No. 0111 of 2023, under Sections 8/20 of the Narcotic Drugs & Psychotropic Substances Act, Police Station Ikauna, District- Shrawasti, 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.

¶5It 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. It is further submitted that sample has not been taken as required by the provisions as contained under Section 52(A) of the N.D.P.S. Act as well as the guidelines issued by the Department of Revenue in the year 1989.

¶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. It is vehemently submitted that eve if the case of the prosecution is taken on its face, 1 Kg. and 50 Grams of 'Charas' is shown to have been recovered from the possession of the applicant, however, admittedly the allegedly recovered contraband is shown to have been weighed along with its wrapper and if the weight of the wrapper is excluded from the total weight of the contraband, the same would be below the commercial quantity i.e. 1 Kg.

¶7It is further submitted that the applicant is in jail in this case since 02.06.2023 and he is not having any criminal history. Charge-sheet in this case has already been submitted 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.

¶8Learned 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

¶9Having heard learned counsel for the parties and having perused the record, it is reflected that 1 Kg. and 50 Grams of 'Charas' is shown to have been recovered from the possession of the applicant. Commercial quantity of 'Charas' starts from 1 kg. Various submissions have been raised on behalf of the applicant in order to show that mandatory provision of Section 50 of the N.D.P.S. Act have not been complied and the sample has also not been taken in view of the guidelines issued by the Department of Revenue, Ministry of Finance of the year 1989, before the Magistrate. It has also been submitted with considerable force that the quantity of 'charas' shown to have been recovered from the possession of the applicant may not be believed, as it has been admitted in the arrest/seizure memo that the contraband has been weighed along with its wrapper and if the weight of the wrapper is excluded from the total weight of the contraband, the same may result in less than the commercial quantity i.e. 1 kg. Applicant is in jail in this case since

02.06.2023 without any criminal antecedents and the presence of the applicant may be secured before the trial court by placing adequate conditions/restrictions.

¶10Having regard to the overall facts and circumstances of the case and for the reasons mentioned herein-before, in the considered opinion of this Court, the satisfaction, as required under Section 37(1)(b) of the N.D.P.S. Act stands satisfied. In result, the applicant has made out a case for bail. The bail application is, thus, allowed.

¶11Let the accused/applicant-Uma Shankar Sharma 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.

¶12In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

¶13Identity, status and residence proof of the applicant and sureties be verified by the Court concerned before the bonds are accepted.

¶14Observations 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 :- 24.11.2023 Praveen High Court of Judicature at Allahabad, Lucknow Bench