Allowed

Madan Soni v. Union of India

Allahabad HC23 Jun 2020BAIL/28288/2019

Case brief

AI extract

What is this about?

This court allowed the third bail application of the applicant, Madan Soni, in an NDPS case. Despite two prior rejections, the court found a fresh ground in the bail grant to a co-accused. Satisfying Section 37 requirements and noting the applicant's clean record, the court ordered his release on personal bond.

What did the court decide?

Applicant Madan Soni released on bail with personal bond and two sureties subject to specified conditions.

Madan Soni Vs Union of India — Narcotics (NDPS) | Allahabad HC (2020)

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Reserved On:- 12.06.2020 Delivered On:- 23.06.2020

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28288 of 2019

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Applicant :- Madan Soni

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Opposite Party :- Union of India Counsel for Applicant :- Mohammad Waseem Counsel for Opposite Party :- Krishna Agarawal

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Hon'ble Siddharth, J.

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Heard Shri Mohd. Waseem, learned counsel for the applicant and Shri Krishna Agarawal, learned counsel for the Directorate of Revenue Intelligence.

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This is third bail application of the applicant. The first Bail Application No. 1211 of 2013 and Second Bail Application No. 2389 of 2017 were rejected by this court on 20.02.2014 and 18.08.2017 respectively.

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Counsel for the applicant has submitted that the bail application of the applicant has already been considered twice on merits and rejected. The law regarding consideration of second and third bail application is well settled. Unless there is a fresh ground, a new bail application cannot be considered. He has submitted that the fresh ground in this bail application is the parity of role of applicant with co-accused, Muhammad Fazal, who was also implicated with the applicant in the present case and has been enlarged on bail by this Court. Co-accused was driver of the

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vehicle when the applicant was shown as owner of the vehicle when he was not the owner but the owner of the vehicle were, Dhananjay Singh and Muhammad Fazal, co-accused. Vide Crl. Misc. Bail Application No. 26810 of 2017, aforesaid co-accused, Muhammad Fazal, has been enlarged on bail by this court on 07.03.2019. The applicant is languishing in jail since 26.10.2011. The trial has not been concluded as yet.

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Counsel for the opposite party, Sri Krishna Agarawal, has vehemently opposed the bail application. His submission is that although the bail of the co-accused has been granted but there is no question of parity since the coordinate Bench of this court has not taken note on limitations under Section 37 of the NDPS Act. He has submitted that there are two considerations under Section 37 of the NDPS Act required to be considered before granting bail when an accused is implicated for committing offences under Section 19/24/27 A of the Act and also for offences involving commercial quantity. First is that public prosecutor should be given opportunity to oppose the bail application. Second, that the court should be satisfied that there are reasonable grounds for believing that accused is not guilty of such offence and that he is not likely to commit offence while on bail.

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He has relied upon paragraph 2 of the judgment of the Apex Court in the case of Satpal Singh vs. State of Punjab, (2018) 13 SCC 813 , and case of State of Kerela and others vs. Rajesh and others, AIR 2020 SC

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721 .

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After considering the rival submissions this court finds that the first requirement of hearing the public prosecutor as per Section 37 of the NDPS Act has been complied in this case. The second requirement is in two parts, first part is that the court should be satisfied that there are reasonable grounds for believing that the accused is not guilty of such an offence and second is that he is not likely to commit any offence while on bail.

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After going through the material on record this court finds that the first requirement of the accused being not guilty of such an offence has to be prima facie considered. The applicant has pleaded that he was neither the driver nor owner of the truck. He has been falsely implicated in this case along with the driver. The owner of the vehicle was Dhananjay Singh and the owner of the alleged contraband recovered was Chunchun Singh. His statement under Section 67 of NDPS Act was recorded under threat. It was not his free and voluntary statement. It was recorded in custody. The violation of procedural safeguards have also been averred. The second requirement of believing that the accused is not likely to commit any offence while on bail can only be inferred from the previous criminal history of implication of the accused in such cases. The counsel for the opposite party has submitted that while granting bail to the co-accused this court has not considered the requirements of Section 37 of the NDPS Act.

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After going through the order passed by this court in the case of coaccused it is clear that the coordinate Bench has considered that the fact that no recovery was made from the applicant. He was falsely implicated. There is no independent public witness to support the prosecution version. Mandatory requirements of law have not been complied. It has also considered that the co-accused has not criminal history. Therefore, it is apparent that the coordinate Bench of this court while granting the bail to the co-accused found that there are reasonable ground for believing that the applicant is not guilty of the alleged offence and he is not likely to commit any offence. The Apex Court in the Case of Union of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798 has held that the court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.

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The Apex Court in the case of Satpal Singh (Supra) has held that for ascertaining whether the accused is not likely to commit any offence while on bail the consideration would be the past antecedents of the accused. In the present case the applicant has no criminal history to his

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credit. While granting bail to co-accused this court has considered this fact that he has no criminal antecedents which is a relevant requirement for consideration under Section 37 of the NDPS Act for grant of bail.

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In view of the above consideration it is clear that applicant is languishing in jail since 26.11.2011 and there is no possibility of conclusion of trial in near future on account of uncertainty prevailing in courts due to spread of pandemic of novel corona virus hence the applicant deserves to be enlarged on bail.

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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

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Let applicant, Madan Soni , be released on bail in Criminal Case No. 99 of 2012, under Sections- 8/20/23/27-A/29 of Narcotic Drugs and Psychotropic Substances Act, Police Station- D.R.I., District- Varanasi, on

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his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions-

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The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.

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The applicant shall cooperate in the trial sincerely without seeking any adjournment.

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The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

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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;

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In case, the applicant misuses the liberty of bail 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.

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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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of

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liberty of his bail and proceed against him in accordance with law.

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In case the applicant has been enlarged on short term bail as per the order of committee constituted under the orders of Hon'ble Supreme Court his bail shall be effective after the period of short term bail comes to an end.

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The applicant shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.

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The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

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The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

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In case of breach of any of the above conditions, it shall be a ground

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for cancellation of bail.

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Order date : 23.06.2020 Rohit

Madan Soni v. Union of India

Case brief

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Madan Soni v. Union of India

Case brief

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