The Allahabad High Court has granted conditional bail to Shivam Gupta, charged of smuggling 1138.80 kg of ganja.
A Single Bench of Justice Deepak Verma passed this order while hearing a Criminal Misc Bail Application filed by Shivam Gupta.
The bail application has been filed on behalf of the applicant Shivam Gupta with a prayer to release him on bail in Case under Section 8/20/29 NDPS Act P.S NCB, Lucknow, District Allahabad during pendency of the trial.
The Prosecution case is that on the basis of confidential report received from Deputy S.P, Lucknow, officers of Narcotic Control Bureau prepared a team of officers, accompanied by another team of STF, apprehended Truck from Andhra Pradesh for delivery at Gandhi Khadi Ashram on NH-76 at Allahabad with 219 packets of Ganja each containing 5.200 kg weight, total quantity of 1138.80 kg and also seized a Scorpio Car having six packets total weight about 30.200 kg.
It is alleged that Scorpio car was driven by applicant and, hence, applicant has been implicated in the case. Applicant has no criminal history. Applicant is languishing in jail since 09.09.2020.
It is next argued that co accused Radheyshayam, Rajan Rai, Abhay Kumar Rai and Ritesh Kumar Rai have been granted bail by coordinate Bench of the Court orders dated 19.10.2022.
Counsel for the applicant has argued that the representative samples of the substance recovered from the vehicles were not drawn at the spot of recovery or in the presence of the Magistrate. It was a chance to recover. Applicants had knowledge 24 hours before the decision. 213 packets were recovered from the truck and six packets were recovered from the Scorpio car were serially bunched together and were rearranged in six lots. The samples were not drawn from each of the packets.
Counsel for the applicant further argued that applicant is not owner of the vehicle and on his confessional statement, he has implicated in the case. In case, the applicant is enlarged on bail he will not misuse the liberty of bail and cooperate in trial. 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 N.D.P.S Act.
The Court noted that,
In counter affidavit available on record, it is stated that recovery was done in the presence of two independent witnesses namely Shashi Kant and Amit Kumar Rai and has taken reference of the Apex Court judgment passed in M. Prabhulal vs The Assistant Director D.R.L, 2020 (47) ACC 1151, that due to want of independent witnesses, recovery cannot be doubted.
In the counter affidavit, it is stated that provision of Section 50 is fully complied with and constructive possession of the applicant over the recovered 30.20 kgs Ganja is apparent on record and the conduct of the applicant is fully comes under the purview of the Illicit Traffic under the N.D.P.S Act and as far as chemical examiner report and in view of Central Revenues Control Laboratory, New Delhi, in respect of representative samples and as per report of six samples of forensic laboratory, it is Ganja.
It has been further stated that applicants having two cases of criminal history, as Case under sections 294, 504 & 506 I.P.C and Crime under sections 323, 504, 506 & 354 IPC. Applicant is not entitled for bail under section 37 of N.D.P.S Act in view of the Apex Court judgement reported in Union of India vs Ram Samujh and another reported in ACC 1999 (39) 643.
“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 (2007) 7 SCC 798, 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, I am of the view that it is a fit case for grant of bail.
Having considered the argument raised by counsel for the applicant and counter affidavit on record, the Court found a prima facie reasonable ground at this stage to enlarge the applicant on bail. As applicant is languishing in jail since 09.09.2020, other co accused has been granted bail and prosecution has failed to frame charges against the applicant.
In view of the Apex Court judgement passed in Toofan Singh and others judgement on which reliance have been placed and there is no evidence that representative samples were prepared before Magistrate and similarly placed accused have also been granted bail by the Court, applicant is also entitled to be released on bail”, the Court observed.
The Court ordered that,
Let the applicant, Shivam Gupta, who is involved in the aforesaid 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. Further, before issuing the release order, the sureties are verified.
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) The applicant shall file an undertaking to the effect that they shall not seek any adjournment on the dates 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.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of their absence, without sufficient cause, the Trial Court may proceed against them under Section 229-A of the Indian Penal Code.
(iv) In case the applicant misuse the liberty of bail during trial and in order to secure their presence, proclamation under Section 82 Cr.P.C is issued and the applicants fail to appear before the Court on the date fixed in such proclamation then the Trial Court shall initiate proceedings against them in accordance with law under Section 174-A of the Indian Penal Code. 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.
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 them in accordance with law.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.