Allowed bail application in an N.D.P.S. Act case where the accused possessed below commercial quantity of diazepam due to non-compliance of Section 50 and severe delay in trial, imposing strict conditions.
Applicant released on bail on personal bond and two sureties with additional strict conditions regarding attendance and trial proceedings.
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Court No. - 72
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46608 of 2020
Applicant :- Rizwan @ Kale Opposite Party :- State of U.P. Counsel for Applicant :- Dur Vijay 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. 238 of 2020, under Section 21/22 of N.D.P.S. Act, Police Station-Harduaganj, District-Aligarh during the pendency of trial.
It is argued by the learned counsel for the applicant that as per the prosecution case 400 gms of diazepam has been recovered from the possession of the applicant which is below commercial quantity, therefore, provisions of Section 37 of N.D.P.S. Act are not attracted in the instant case. It is next submitted by the learned counsel for the applicant that the applicant has been falsely implicated in this case. There is no public witness of the alleged recovery and mandatory provisions of Section 50 of N.D.P.S. have not been complied with in true spirit of the law. There is no prospect of trial of the present case being concluded in near future due to heavy dockets. The applicant is languishing in jail since 10.09.2020 and in case he is enlarged on bail, he will not misuse the liberty of bail.
It is also pointed out that the applicant has criminal history of 10 cases which have been explained in Para 15 of the bail application and Para 3 of the supplementary affidavit.
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 Rizwan @ Kale , 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 :- 5.1.2021 Sunil Kr. Gupta
3 issues framed by the court
whether the applicant is entitled to bail under Section 437 Cr.P.C. in a case under Sections 21/22 of N.D.P.S. Act involving below commercial quantity of narcotics accompanied by non-compliance of Sec
whether the applicant can be released on bail in a drug possession case where the alleged quantity is below commercial limits.
whether bail should be granted to an applicant with criminal history who is languishing in jail pending trial.
Rizwan @ Kale
State of U.P.
Sanjay Kumar Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
