In a bail application under the N.D.P.S. Act, the Court granted release to the applicant on personal bond with sureties, relying on alleged non-compliance of statutory provisions and the reformative theory of punishment, despite opposition by the State.
Released on bail by furnishing a personal bond with two sureties.
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Court No. - 69
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3121 of 2019
Applicant :- Harendra Opposite Party :- State Of U.P. Counsel for Applicant :- Manoj Singh,Awadhesh Kumar Mishra Counsel for Opposite Party :- G.A.
Hon'ble Vivek Kumar Singh,J.
Rejoinder affidavit filed on behalf of applicant, is taken on record.
Heard learned counsel for the applicant and Sri Abhinav Prasad, learned A.G.A. appearing for the State.
It has been contended by the learned counsel for the applicant that 1Kg. 200gram contraband article, i.e., Charas is said to have been recovered from the possession of the applicant. He further submits that there is no compliance of mandatory provisions of the N.D.P.S. Act, hence the recovery is bad in the eyes of law. The applicant has no criminal history with respect to the N.D.P.S. Act. It has also been submitted that the applicant is languishing in jail since 3.10.2018. It is also submitted that criminal history of the applicant has properly been explained in para 6 to the affidavit filed in support of bail application.
Learned A.G.A. opposed the prayer for bail.
Considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tempering of the witnesses and prima facie satisfaction of the Court in support of the charge and reformative theory of punishment , the applicant is entitled to be released on bail in this case.
Without expressing any opinion on the merits of the case let the applicant Harendra involved in Case Crime No. 269 of 2018, under Section 8/20 N.D.P.S. Act, Police Station Greater Noida, District Gautam Budh Nagar be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of magistrate/court concerned, with the following conditions:-
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.
In case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail.
Order Date :- 26.3.2019 Arti
2 issues framed by the court
Whether the applicant is entitled to bail in a case involving recovery of contraband where mandatory provisions of the N.D.P.S. Act are alleged to be non-compliant.
Whether reasonable apprehension of witness tampering and severity of punishment justify granting bail despite non-compliance allegations.
Harendra
Vivek Kumar Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
