Allowed

Rahish v. State of U.P.

Allahabad HC23 May 2022BAIL/10688/2022

Case brief

AI extract

What is this about?

This application for bail was filed by an accused involved in a case under Sections 8/21 of the NDPS Act. The High Court allowed bail, noting the quantity recovered was below commercial limits, lack of independent witnesses, absence of FSL report, and procedural lapses in seizure.

What did the court decide?

Released on bail via personal bonds and two sureties, subject to issuance of proclamation if absent and specific conditions regarding presence in court.

Rahish Vs State of U.P. — Narcotics (NDPS) | Allahabad HC (2022)

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Court No. - 78

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10688 of 2022

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Applicant :- Rahish Opposite Party :- State of U.P. Counsel for Applicant :- Mohammad Faisal Khan Counsel for Opposite Party :- G.A.

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Hon'ble Saurabh Lavania,J.

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Heard learned counsel for the accused-applicant and learned A.G.A. and perused the record.

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Present bail application has been filed by the accused-applicant involved in Case Crime No. 13 of 2022 under Sections 8/21 of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "N.D.P.S. Act") at Police Station Mirzapur, District Saharanpur.

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Learned Counsel for the applicant submitted that as per story of the prosecution, the applicant and co-accused Mussallam were apprehended by the Police on 18.01.2022 at 19:30 Hours. The prosecution has shown recovery of 200 Gms. of smack from the vehicle bearing Registration No.DL8CK-7304. The prosecution has also shown recovery of a country made pistol from the possession of the applicant and a knife from the possession of the co-accused -Mussallam. The quantity of smack alleged to have been recovered from the joint possession of the applicant and co-accused is below commercial quantity of 250 gms prescribed in the schedule of the Act, 1985. FSL report, which is relevant in this case, is not available with the prosecution to support the story of the prosecution. There is no public independent witness to support the story of the prosecution. It is further stated that mandatory provisions of NDPS Act related to search, seizure and the arrest of the applicant have not been complied with. The accused applicant is in jail since 18.01.2022 and the possibility of conclusion of trial in near future is extremely bleak.

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It is lastly submitted that there is no possibility of the applicant of fleeing away from judicial custody or tampering with the witnesses. In case the applicant is enlarged on bail, he shall not

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misuse the liberty, terms and conditions of bail and will cooperate in the trial.

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Learned A.G.A., on the basis of instructions, has opposed the prayer for bail. However, he could not dispute the arguments advanced by the learned counsel for the applicant which are to the effect that there is no public independent witness to support the story of the prosecution as also till date FSL report is not available with the prosecution.

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Considering the facts and circumstances of the case, perusing the record and also considering the nature of allegations, arguments advanced by the learned counsel for the parties including in relation to non-compliance of mandatory provisions related to the recovery, search and seizure, independent witnesses and FSL report as also the quantity of recovered contraband substance and without expressing any opinion on the merit of the case, I am of the view that a case for bail is made out.

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Let the applicant- Rahish be released on bail in the aforesaid case crime number on his furnishing personal bonds and two sureties of the like amount to the satisfaction of the Magistrate/Court concerned, subject to following conditions :-

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(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.

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(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.

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(iii) In case, the applicant misuse 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 fail 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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(iv) The applicant shall remain present, in person, before the

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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.

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

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(vi) The computer generated copy of such order shall be self attested by the counsel of the party concerned.

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(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.

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Order Date :- 23.5.2022 Vinay/-

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Digitally signed by VINAY KUMAR Date: 2022.05.23 18:02:07 IST Reason: Location: High Court of Judicature at Allahabad

Rahish v. State of U.P.

Case brief

What is this about?

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Rahish v. State of U.P.

Case brief

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