Single judge granted bail to applicant accused of NDPS offences alleging false recovery and procedural violation of Section 50, citing Union of India vs. Shiv Shankar Keshari.
Applicant released on bail via personal bond and two sureties subject to conditions of attending trial, not tampering with witnesses, and abstaining from illegal activities.
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Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6725 of 2021
Applicant :- Shiv Charan @ Bhola Opposite Party :- State of U.P. Counsel for Applicant :- Vijay Kumar Dwivedi Counsel for Opposite Party :- G.A.
Hon'ble Vivek Kumar Singh,J.
Heard learned counsel for applicant and Sri Sanjay Singh, learned A.G.A.-I for the State and perused the record.
Learned counsel for the applicant has submitted that applicant has been falsely implicated in the present case due to ulterior motive, on the basis of false and planted recovery of 510 grams of Dizapam has been recovered from the possession of the applicant and there is no public witness of the alleged recovery. It is further contended that mandatory provision of Section 50 of N.D.P.S Act has not been complied with. At the stage of consideration of bail it cannot be decided whether offer given to the applicant and his consent obtained was voluntary. These are the questions of fact which can be determined only during trial and not at the present stage. In case of prima facie non-compliance of mandatory provision of Section 50 the accused is entitled to be released on bail within the meaning of Section 37 of N.D.P.S. Act. The applicant has no criminal history. It is also submitted that the applicant is in jail since 28.12.2020 and he undertakes that he will not misuse liberty, if granted.
Learned A.G.A. contends that the innocence of the applicant cannot be adjudged at pre-trial stage who is involved in supplying contraband, therefore, the applicant does not deserve any indulgence. In case the applicant is released on bail he will again indulge in similar activity. The "reasonable grounds" mentioned in Section 37(1)(b)(ii) of NDPS Act mean something more than prima facie ground. It implies substantial probable causes for believing that accused is not guilty of the offence charged and points to existence of such facts and circumstances which are sufficient to hold that accused is not guilty.
However 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.
Considering the facts of the case and keeping in mind the arguments advanced on behalf of the parties, 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.
Let applicant- Shiv Charan @ Bhola , be released on bail in Case Crime No.623 of 2020, under Sections- 21/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station- Jawan, District- Aligarh, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the ultimate merits of the case.
In case of breach of of any of the above conditions, it shall be a ground for cancellation of bail.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
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.
Order Date :- 15.7.2021 Dev/-
3 issues framed by the court
Whether the applicant is entitled to bail under Section 37 of the NDPS Act considering prima facie non-compliance of Section 50.
Whether the court can decide the voluntariness of the consent given during recovery at the bail stage.
Whether the applicant attracting reasonable apprehension under Article 21 warrants grant of bail.
Colour shows how this judgement treated each authority
Union of India vs. Shiv Shankar KeshariExplained¶9
(2007) 7 SCC 798 · Who else cites this
5 provisions across 2 enactments
Shiv Charan @ Bhola
Vivek Kumar Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
