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

Court No. - 14 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4211 of 2023 Applicant :- Kuldeep Tiwari Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Saurabh Srivastava Counsel for Opposite Party :- G.A. Hon'ble Mohd. Faiz Alam Khan,J.

¶1Rejoinder affidavit filed by the applicant is taken on record.

¶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-Kuldeep Tiwari for grant of bail, in Case Crime No. 231 of 2022, under Sections 8/21 of the Narcotic Drugs & Psychotropic Substances Act, Police Station Shivratanganj, District Amethi, 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 further submitted that the mandatory provision as contained under 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 further submitted that apart from the instant case, criminal history of 14 cases has been alleged against the applicant. However, one of such case is pertaining to the Gangsters Act and in which case, the bail application would be filed after getting bail in the offences shown in the gang chart and out of remaining 13 criminal cases, the bail orders with regard to 8 cases have been placed on record through the bail application as well as through supplementary affidavit of date

14.3.2023. However, with regard to the rest 5 cases bearing Case Crime Nos. 496 of 2012, 708 of 2012, 745 of 2014, 625 of 2017 and 1524 of 2017, despite due diligence and efforts, the pairokar of the applicant (mother, aged about 60 years) could not procure the copy of the bail orders. However in all these cases also, the applicant has been granted bail and the same has been specifically stated in para nos. 3 to 7 of the supplementary affidavit dated 14.3.2023.

¶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 160 grams of 'morphine/heroin' is shown to have been recovered from the possession of the applicant, which is much below the commercial quantity i.e. 250 grams and therefore, the twin stringent conditions mentioned under Section 37(1)(b) of the N.D.P.S. Act would not attract in this case.

¶8It is further submitted that the applicant is in jail in this case since 16.10.2022. 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.

¶9Learned 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.

¶10Having heard learned counsel for the parties and having perused the record, it is evident that only 160 grams of 'morphine/heroin' is shown to have been recovered from the possession of the applicant. Commercial quantity of the 'morphine/heroin' is more than 250 grams, thus 160 grams of 'morphine/heroin' 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 as well as the guidelines issued by the Department of Revenue in the year 1989 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. Criminal history of the applicant comprising of 14 cases has been explained. Applicant is in jail in this case since 16.10.2022. 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-Kuldeep 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 :- 29.11.2023 Shravan High Court of Judicature at Allahabad, Lucknow Bench