Allowed

Vishnu Sardar v. State of U.P.

Allahabad HC25 May 2023BAIL/14337/2023

Case brief

AI extract

What is this about?

In Criminal Misc. Bail Application No. 14337 of 2023, the Allahabad High Court granted bail to an accused charged under the NDPS Act. The court held that non-fulfillment of Section 50 requirements and lack of public witnesses regarding recovery warranted bail, relying on Supreme Court precedent without deciding guilt.

What did the court decide?

Released on bail with a personal bond and two heavy sureties, subject to conditions regarding appearance and the prevention of misuse.

Vishnu Sardar Vs State of U.P. — Narcotics (NDPS) | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:118827

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Court No. - 86

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14337 of 2023

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Applicant :- Vishnu Sardar Opposite Party :- State of U.P. Counsel for Applicant :- Rahul Gaur Counsel for Opposite Party :- G.A.

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Hon'ble Vivek Kumar Singh,J.

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Rejoinder affidavit dated 24.5.2023 filed by learned counsel for the applicant today in the Court is taken on record.

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Heard Sri Rahul Gaur, learned counsel for applicant and Sri Mithilesh Kumar, learned A.G.A. for the State and perused the record.

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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 458 kilograms of Ganja has been recovered from the joint possession of applicant and co-accused person 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 15.2.2021 and he undertakes that he will not misuse liberty, if granted.

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It is further submitted that that the co-accused Kanhaiya Lal Pandey has been granted bail by this Court on 7.9.2021 in Criminal Misc. Bail Application No.26262 of 2021, a copy of said order has been annexed as annexureRA-2 to the Rejoinder affidavit, which is on record. The applicant claims parity.

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Learned A.G.A. has opposed the prayer for bail by contending 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.

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However the Apex Court in the Case of Union of India vs. Shiv

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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.

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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.

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Let the applicant Vishnu Sardar involved in Case Crime No.23 of 2021, under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, Police Station Nasirpur, District Firozabad be released on bail on his furnishing a personal bond with two heavy sureties each in the like amount to the satisfaction of the court concerned with the following condition:-

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(i) 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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(ii) In case, the applicant misuses the liberty of bail 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.

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(iii) 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

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Order Date :- 25.5.2023 Dev/-

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Digitally signed by :- DEV PRAKASH High Court of Judicature at Allahabad

Vishnu Sardar v. State of U.P.

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Vishnu Sardar v. State of U.P.

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