Prem Shankar Panday @ Gudulle v. State of U.P. Thru. Prin. Secy. Deptt. of Home U.P. Lko

Court No. - 15 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12384 of 2024 Applicant :- Prem Shankar Panday @ Gudulle Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home U.P. Lko. Counsel for Applicant :- Anubhav Yadav Counsel for Opposite Party :- G.A. Hon'ble Shree Prakash Singh,J. Counter affidavit filed today by learned counsel for the State is taken on record. Heard learned counsel for the applicant, learned AGA for the State and perused the record. The instant bail application has been filed on behalf of the applicant with the prayer to release him on bail during the trial in Case Crime No. 229 of 2024, under Sections 8/21 of NDPS Act, Police Station Musafirkhana, District Amethi. Contention of learned counsel for the applicant is that the applicant is innocent and has falsely been implicated in the instant matter due to ulterior motive. He submits that as per the prosecution story, 255 gram smack is said to be recovered from the possession of the applicant which is slightest above the commercial quantity, but there is no independent public eye witness of the recovery. He further submits that there is non-compliance of Section 50 of N.D.P.S. Act and in support of his contention, he has placed reliance upon the Judgment of the Apex Court rendered in the case of Arif Khan @ Agha Khan vs. State of Uttarakhand, (2018) 18 SCC 380, wherein it has been held that mandatory procedure of Section 50 of the NDPS Act has to be complied with in regard to search and recovery. He further added that applicant has 7 cases criminal history which has been explained and he is languishing in jail since

14.10.2024. He next submits that in case, the applicant is granted bail, he will not misuse the liberty of bail and would cooperate in the trial proceedings. Per contra, learned AGA has opposed the contentions aforesaid and submits that applicant was involved in committing the aforesaid offence as contraband substance i.e. Smack has been recovered from his possession and, as such, the applicant is not entitled to be released on bail. Having heard the learned counsel for the parties and after perusal of record, it is evident that recovered contraband substance, i.e. 225 gram skack, which is slightest above than the commercial quantity; there is no independent public eye witness of the alleged recovery; there is non-compliance of Section 50 of the NDPS Act; criminal history has been explained and the applicant is languishing in jail since 14.10.2024 and he has undertaken that he will not misuse the liberty of the bail and would cooperated in the trial proceedings. Considering the submissions of learned counsel of both sides, nature of accusation and severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment and considering larger mandate of the Article 21 of the Constitution of India and, without expressing any view on the merits of the case, I find it to be a case of bail. Let the applicant-Prem Shankar Panday @ Gudulle, involved in the aforementioned crime be released on bail, on his furnishing a personal bond and two sureties each in the like amount, to the satisfaction of the court concerned, with the following conditions:-

(1) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, or otherwise during the investigation or trial;

(2) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. He 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;

(3) 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.; and

(4) In case, the applicant misuses the liberty of bail during trial 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, the trial court shall initiate proceedings against him, in accordance with law under Section 174-A of the Indian Penal Code. The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison. It is clarified that the observations made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the merits of the case. Order Date :- 19.12.2024 kkv/ High Court of Judicature at Allahabad, Lucknow Bench