Chand Babu v. State of U.P Thru.Its. Secy. Ministiry Home Affairs Civil Secrt. Lko

Court No. - 14 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14367 of 2023 Applicant :- Chand Babu Opposite Party :- State Of U.P Thru.Its. Secy. Ministiry Home Affairs Civil Secrt. Lko. Counsel for Applicant :- Fahmid Ahmad 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 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-Chand Babu for grant of bail, in Case Crime No.304 of 2023, under Sections 8/21 of the Narcotic Drugs & Psychotropic Substances Act, Police Station Subeha, District Barabanki, 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 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 and even if the case of the prosecution is believed, only 150 grams of morphine 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.

¶7It is further submitted that the applicant is in jail in this case since 27.09.2023 and apart from the instant case criminal history of two cases is being alleged against the applicant, however, these two cases, which are being shown against the applicant, have been slapped against him in the same transaction when he was allegedly arrested by the police and from before the involvement of the applicant in the instant case, 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 evident that only 150 grams of morphine is shown to have been recovered from the possession of the applicant. Commercial quantity of morphine is more than 250 grams, thus the morphine 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 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. Applicant is in jail in this case since 27.09.2023 and apart from the instant case criminal history of two cases is being alleged against the applicant, however, these two cases, which are being shown against the applicant, have been slapped against him in the same transaction when he was allegedly arrested by the police and from before the involvement of the applicant in the instant case, he is not having any criminal history. 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 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.

¶11Let the accused/applicant-Chand Babu 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 :- 6.12.2023 Anupam S/- High Court of Judicature at Allahabad, Lucknow Bench