The Allahabad High Court has allowed the bail application of the accused charged with trafficking heroin/morphine.
A single bench of Justice Chandra Kumar Rai passed this order while hearing a Criminal Misc Bail Application filed by Sunil Kumar Kashyap.
Applicant Sunil Kumar Kashyap had sought bail in case under Sections 8/17/21/27-A/29 of the NDPS Act, PS DRI, District Varanasi.
It is submitted by the Senior Counsel that in respect of the recovery of heroin/ morphine, a complaint was filed on 13.4.2004 by the Intelligence Officer, DRI, Varanasi.
It is further submitted that applicant was neither arrested on the spot nor is he named in the seizure / recovery memo but during a statement made by co-accused under Section 67 of the N.D.P.S Act, name of applicant was surfaced, being the manager.
It is also submitted that the complaint proceedings dated 13.4.2004, which was registered as Case under Sections 8/17/21/27-A/29 of the NDPS Act, came to be stayed by the Court on 10.6.2004 in A-482 No 4897/2004, however, the interim protection given by the court came to be vacated on 22.11.2017. He further placed reliance upon Sections 53 & 67 of the NDPS Act and submitted that persons who were arrested and made statements under Section 67 of the NDPS Act, the same is affected by Sections 25 & 26 of the Indian Evidence Act.
It is finally submitted that the applicant claims to have no previous criminal history, has been in jail since 22.2.2022, undertakes not to misuse the liberty of bail, trial is not likely to be concluded in the near future, he will be enlarged on bail.
Counsel for the applicant further placed reliance on the decision of the Apex court in Toofan Singh vs State of Tamilnadu, 2021 (114) ACC 365 and submitted that the statement of applicant recorded under Section 67 of NDPS Act does not have any evidentiary value.
On the other hand, the Naroctics Control Bureau counsel opposed the prayer for bail and submitted that nexus and collusion of applicant with other accused person are apparent on record, conscious and constructive possession of the applicant over the recovered contraband is also apparent. As such, the applicant is not entitled to be released on bail.
He further submitted that co-accused Mahendra Singh and Deepak Soni, driver and the cleaner respectively, have been convicted by the trial court vide judgment dated 3.6.2010 as such appellant is not entitled to be released on bail.
“Considering the facts and circumstances of the case as also the contentions noted above, I am inclined to enlarge the applicant on bail,” the Court observed.
The Court ordered that,
Let the applicant involved in aforesaid case be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) 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. 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 of the Indian Penal Code.
(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 is issued and the 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 of the Indian Penal Code.
(iv) 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 him in accordance with law.