Sunil Kumar v. State of U.P. Thru. Prin. Secy. Home Lko

Court No. - 14 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13957 of 2023 Applicant :- Sunil Kumar Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Rahul Agnihotri Counsel for Opposite Party :- G.A. Hon'ble Mohd. Faiz Alam Khan,J.

¶1Counter affidavit filed on behalf of the State is taken on record.

¶2Heard Shri Rahul Agnihotri, 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-Sunil Kumar for grant of bail, in Case Crime No. 286 of 2023, under Sections 8/21 of the Narcotic Drugs & Psychotropic Substances Act, Police Station Pasgawan, District-Lakhimpur Kheri, 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 nothing incriminating or any contraband has been recovered from the possession of the applicant and the same appears to have been planted by the police.

¶5It is further submitted that the admitted case of the prosecution is to the tune that on the information received from a police informer, the applicant was apprehended along with 130 grams of 'alprazolam powder'. However, the information received from the police informer, was not recorded in writing either before, during alleged arrest/recovery or even after the arrest and recovery. Thus, the mandatory provision of Section 42 of N.D.P.S. Act has been clearly violated.

¶6It 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.

¶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. It is next submitted that the applicant is in jail in this case since 23.08.2023 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. on the other hand submits that applicant/accused has committed an heinous offence and having regard to the twin conditions as enshrined under Section 37(1)

(b) of the N.D.P.S. Act, he is not entitled to be released on bail

¶9Perusal of the record would reveal that 130 Grams of 'alprazolam powder' is shown to have been recovered from the possession of the applicant. Various submissions have been raised by learned counsel for the applicant in order to show that mandatory provisions as contained under Sections 42, 50 and 52-A of the N.D.P.S. Act has been violated and, thus, the recovery as well as the arrest of the applicant is void ab initio. Admittedly the applicant is not having any criminal antecedents and the instant case appears to be the sole case against the applicant. Having regard to the fact that applicant is already in jail in this case for the last four months and he is not having any criminal antecedents and the contraband/'alprazolam powder' appears to have been weighed along with its wrapper, the twin conditions as enshrined under Section 37(1)(b) of the N.D.P.S. Act stands satisfied and facility of bail may be extended to the applicant. 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 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-Sunil Kumar 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 :- 19.12.2023 Praveen High Court of Judicature at Allahabad, Lucknow Bench