Single judge allowed bail to the applicant in a narcotics case where implicating evidence came only from the co-accused's statement. The court held it was a fit case for release without passing a finding of not guilty.
Release on bail by furnishing a personal bond and two sureties.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 74
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27681 of 2022
Applicant :- Fida Hussain Opposite Party :- Union Of India And Another Counsel for Applicant :- Istiyaq Ali,Ali Hasan,Krishna Agarawal
Counsel for Opposite Party :- A.S.G.I.
Hon'ble Deepak Verma,J.
Heard Sri Ali Hasan, learned counsel for the applicant, Sri Krishna Agrawal, learned counsel appearing for N.C.B., Sri Manoj Kumar Dwivedi, learned A.G.A. for the State and perused the material brought on record.
The instant bail application has been filed on behalf of the applicant with a prayer to release him in Case Crime No.02 of 2022, registered under Sections 8/21/22/29 of N.D.P.S. Act, Police Station N.C.B., District Bareilly during pendency of the trial.
Learned counsel for the applicant submitted that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. The applicant was not arrested from the spot. The applicant's name surfaced on account of confessional statement of co-accused, namely, Asif recorded under Section 67 of the N.D.P.S. Act, who was arrested with 730 gm heroin and 5.9 kg alprazolam . Applicant's case is different from coaccused, Asif. Applicant's counsel has placed reliance on Apex Court judgment passed in State By (NCB) Bengaluru Vs. Pallulabid Ahmad Arimutta and another, 2022 0 Supreme (SC) 56 in para 10. He next argued that no contraband material has been recovered from the possession of the applicant and only on the statement of co-accused, Asif, the applicant has been
arrested and implicated in the present case. The applicant has no previous criminal antecedents. The applicant is languishing in jail since 05.06.2022. In case, the applicant is released on bail, he will not misuse the liberty of bail and co-operate in trial. 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.
Per contra , learned counsel for N.C.B., Sri Krishna Agrawal has vehemently opposed the bail prayer of the applicant and stated that from the co-accused contraband material has been recovered and specifically stated that the co-accused had purchased the contraband substance from the applicant and prima facie involvement of applicant is made out, moreover, the provision of Section 67 of N.D.P.S. Act would not be applicable.
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 view of Hon'ble the Apex Court in the judgment placed by applicant's
counsel and 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 the applicant, Fida Hussain, who is involved in the aforesaid case crime, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) 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.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.
(iv) 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 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.
(v) 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.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Order Date :- 27.9.2022 Nitin Verma
Digitally signed by NITIN KUMAR VERMA Date: 2022.09.27 17:30:50 IST Reason: Location: High Court of Judicature at Allahabad
2 issues framed by the court
Whether the applicant is entitled to bail under Section 37 of the NDPS Act despite being implicated based on the co-accused's statement.
Whether the court can determine the voluntariness of an offer made to the applicant at the bail stage.
Colour shows how this judgement treated each authority
State By (NCB) Bengaluru Vs. Pallulabid Ahmad ArimuttaReferred¶8
State By (NCB) Bengaluru Vs. Pallulabid Ahmad Arimutta and another, 2022 0 Supreme (SC) 56
Union of India vs. Shiv Shankar KeshariFollowed¶11
Union of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798 · Who else cites this
8 provisions across 4 enactments
Fida Hussain
Union Of India
Deepak Verma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
