Single judge granted bail to Ashish Kumar accused under N.D.P.S. Act. Court applied Shiv Shankar Keshari ratio, held it is a fit case considering Art 21 and mens rea questions are for trial.
Released on bail with personal bond and two sureties subject to conditions regarding appearance and non-tampering.
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Court No. - 75
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33717 of 2022
Applicant :- Ashish Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Vishnu Pal,Yogendra Misra Counsel for Opposite Party :- G.A.
Hon'ble Deepak Verma,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
The instant bail application has been filed on behalf of the applicant Ashish Kumar with a prayer to release him on bail in Case Crime No.242 of 2022, under Section 8/20 N.D.P.S. Act, P.S.Sumerpur, District Hamirpur, during pendency of the trial.
It is argued by the learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case. Learned counsel for the applicant states that two persons were carrying 10 kg ganja/contraband substance. He next argued that provisions of Sections 41, 50, 52, 53 & 57 of N.D.P.S. Act have not been complied with while arresting the applicant. He next argued that co-accused Sonu Kashyap has been granted bail by coordinate Bench of this Court in Criminal Misc.Bail Application No.33585 of 2022 by order dated 10.08.2022. The applicant is languishing in jail since 19.06.2022. In case, the applicant is enlarged on bail he will not misuse the liberty of bail and cooperate 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 noncompliance 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.
Learned A.G.A. has opposed the bail prayer of the applicant.
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 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 Ashish Kumar , be released on bail in Case Crime No.242 of 2022, under Section 8/20 N.D.P.S. Act, P.S.Sumerpur, District Hamirpur 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 they 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 their absence, without sufficient cause, the Trial Court may proceed against them 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 their presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the Court on the date fixed in such proclamation then the Trial Court shall initiate proceedings against them 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 them 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 :- 25.8.2022 SKD
Digitally signed by SURJIT KUMAR DEY Date: 2022.08.25 14:28:48 IST Reason: Location: High Court of Judicature at Allahabad
2 issues framed by the court
Whether the applicant is entitled to release on bail while keeping trial pending.
Whether prima facie non-compliance of Section 50 mandates release under Section 37 of N.D.P.S. Act.
Colour shows how this judgement treated each authority
Union of India vs. Shiv Shankar KeshariExplained¶9
(2007) 7 SCC 798 · Who else cites this
7 provisions across 4 enactments
Ashish Kumar
State of U.P.
Deepak Verma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Deepak Verma
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