Single judge allowed the bail application of Kamal Kishor accused under N.D.P.S. Act on grounds of innocence, no criminal antecedents, recovery below commercial quantity, and grant of bail to co-accused. Conditions of bail and presence were imposed.
Release on bail by furnishing personal bond and two sureties subject to conditions.
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Court No. - 72
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40418 of 2020
Applicant :- Kamal Kishor Opposite Party :- State of U.P. Counsel for Applicant :- Gautam Baghel,Gaurav Pratap Singh Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and perused the record of the case.
The instant bail application has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No. 910 of 2020, under Section 8/22 of N.D.P.S. Act, police station Thana Naubasta, district Kanpur Nagar during the pendency of trial.
It is submitted by learned counsel for the applicant that as per prosecution case, on 25.09.2020, the police apprehended two persons, namely, Girish Kumar and Shailesh Pandey alias Ajai Pandey. A recovery of 600 tablets of Alprasafe has been made from the each of the co-accused, namely Girish Kumar and Shailesh Pandey alias Ajai Pandey. On the disclosure made by Girish Kumar and Shailesh Pandey alias Ajai Pandey raid was conducted at the shop of one Himanshu Singh, from where 600 tablets of Alprasafe and 72 injections of Norphin were recovered. Later on, on the disclosure made by co-accused Girish Kumar and Shailesh Pandey alias Ajai Pandey, raid was also conducted at Avi Medical Store, from where 216 injection of Norphin (1.296 gms), 1200 tablets of Alprasafe (60 gms), 250 tablets of Avil (33.75 gms), 100 disposable syringe and 164 needles etc. were recovered. It is further submitted by learned counsel for the applicant that the applicant is absolutely innocent and has falsely been implicated in the present case with some ulterior motive. Learned counsel for the applicant also submitted that on the basis of recovery made from Avi Medical Store, the applicant has been made accused because he was siting in the said medical store. It is next submitted by the learned counsel for the applicant that proprietor of Avi Medical Store is Rashmi Dwivedi, who is aunt of the applicant, but she has not been made accused in the present case. Learned counsel for the applicant alleged that neither the applicant has concern with Avi Medical Store nor with the alleged recovery made from such medical store. Learned counsel for the applicant also
contended that the alleged recovery from Avi Medical Store is below commercial quantity, therefore, provisions of section 37 of N.D.P.S. Act are not attracted in the instant case. Co-accused Shailesh Pandey @ Ajai Pandey, Himanshu Singh and Girish Kumar have already been granted bail by co-ordinate Bench of this Court vide orders dated 25.11.2020, 01.12.2020 and 03.12.2020 in Criminal Misc. Bail Application Nos. 41400 of 2020, 42360 of 2020 and 40676 of 2020 respectively. It is also submitted that the applicant has no criminal antecedent to his credit and is facing detention since 25.09.2020. It is next contended that there is no chance of the applicant of fleeing away from the judicial process or tampering with the prosecution evidence.Learned counsel for the applicant lastly submitted that if the applicant is released on bail, he will not misuse the liberty of bail and will cooperate in the early disposal of the case.
Per contra, learned Additional Government Advocate has opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage therefore, the applicant does not deserve any indulgence. In case, the applicant is released on bail, he will misuse the liberty of bail.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, I am of the view that the applicant has made out a fit case for bail. Hence, the bail application is hereby allowed.
Let the applicant Kamal Kishor be released on bail in the aforesaid case crime number 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.
(v) The applicant shall file computer generated copy of this order downloaded from the official website of High Court Allahabad.
(vi) The computer generated copy of this order shall be self attested by the counsel of the party concerned.
(vii) 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.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 6.1.2021 Sazia
2 issues framed by the court
Whether the petitioner is entitled to release on bail in a case involving Section 8/22 of N.D.P.S. Act.
Whether the case falls under provisions of Section 37 of the N.D.P.S. Act given the recovery amount.
4 provisions across 3 enactments
Kamal Kishor
State of U.P.
Sanjay Kumar Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
