Friday, August 19, 2022

Allahabad HC grants bail to man caught with drugs in his possession

The bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant seeking enlargement on bail in Case under Section 8/21 NDPS Act, 1985 at Police Station Khatauli, District Muzaffar Nagar.

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The Allahabad High Court has granted bail to a man held with drugs.

A single-judge bench of Justice Krishan Pahal passed this order while hearing a Criminal Misc Bail Application filed by Gaurav @ Gaura.

The bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant seeking enlargement on bail in Case under Section 8/21 NDPS Act, 1985 at Police Station Khatauli, District Muzaffarnagar.

In the compliance affidavit, it has been stated that there are 49 criminal cases registered against the applicant.

As per the District Crime Records Bureau (DCRB) report, of 49 cases 48 cases have been registered at PS Khatauli, District Muzaffarnagar and one case i.e, Case under Section 60 Excise Act r/w Section 272, 273 IPC was registered at PS Mansoorpur, District Muzaffarnagar.

Senior Advocate Brijesh Sahay, the counsel for the applicant, submitted that the applicant has been falsely implicated in the case. The applicant was arrested and 102.66 gram Alprazolam was said to have been recovered from his possession.

He further submitted that nothing has been recovered from the possession of the applicant and the alleged recovery is false and fabricated.

It is further submitted that there is no chemical analysis report to prove that the recovered contraband is actually the Alprazolam powder or something else.

Sahay said that at the time of arrest, mandatory provisions of Section 50 of NDPS Act have not been complied with.

The counsel further said that he has been implicated in several criminal cases by the police for the reason that the father of the applicant has made several complaints against the police officials of District Muzaffarnagar.

Sahay said the animus of the police towards the applicant is evident from the fact that the recovery of 102.66 gram Alprazolam has been deliberately shown from the possession of the applicant to make it fall in the category of commercial quantity. The recovery of more than 100 gram Alprazolam falls in the category of commercial quantity. The recovery is a sham.

It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required. The applicant has been languishing in jail since December 29, 2020. He undertakes that he will not misuse the liberty, if granted, therefore, he may be released on bail.

On the other hand, the Additional Advocate General opposed the application on the ground that applicant has criminal history of 48 cases and most of them have been lodged before filing of the said complaint against the police officials.

He further submitted that criminal antecedent of the accused is to be seen while granting the bail. Their relevance cannot be totally ignored.

The counsel for the applicant submitted that applicant has already been acquitted in five criminal cases whereas the prosecution in 17 has already come to an end. It is also submitted that the applicant has already been granted bail by this Court as well as by the lower Court in 21 criminal cases after considering the merits of the case.

It is further submitted by counsel for the applicant that criminal history attributed to the accused applicant is due to the application dated April 26, 2002 which has been filed by the father of the applicant against the police officials.

It has also been admitted in the compliance report filed by the SSP that the then Senior Superintendent of Police, Muzaffarnagar directed the Circle Officer, Khatauli to inquire into the aforesaid matter and submit a report.

It has also been fairly admitted by the Additional Advocate General that an investigation into the allegations levelled by the father of applicant was also taken up by the CBCID against the police officials.

The matter of foisting of frivolous cases against the applicant has already been dealt with by the Court in order dated November 9, 2021. The same is not being reiterated to avoid repetition.

The Court said that the object of grant of bail to an accused of an offence is neither punitive nor preventive in nature. The true object behind granting bail is to secure the appearance of the accused during trial. The courts owe more than verbal respect to the principle that punishment begins after convictions and that every man is deemed to be innocent until duly tried and found guilty. From the earlier times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as mark of disapproval of former conduct whether the accused has been convicted for it or not.

At the stage of consideration of bail it cannot be decided whether the offer given to the applicant and his consent obtained was voluntary. These are the questions of fact which can be determined only during trial and not at the present stage. In case of prima facie non-compliance of mandatory provision of Section 50 the accused is entitled to be released on bail within the meaning of Section 37 of NDPS Act.

Considering the facts of the case and keeping in mind, the ratio of the Apex Court’s judgment in the case of Union of India vs. Shiv Shankar Keshari (spura), larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/ State and other circumstances, but without expressing any opinion on the merits, the court is of the view that it is a fit case for grant of bail.

“Keeping in view the nature of the offense, evidence on record regarding complicity of the accused, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of UP and another reported in (2018) 3 SCC 22 and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail,” the court observed while allowing the bail Application.

The Court ordered, “Let the applicant- Gaurav @ Gaura, who is involved in aforementioned case 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 subject to following conditions:-

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in Court. In case of default of this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law.

(ii) The applicant 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 IPC.

(iii) 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., may be issued and if applicant fails to appear before the Court on the date fixed in such proclamation, then, the Trial Court shall initiate proceedings against him, in accordance with law, under Section 174-A IPC.

(iv) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

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

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