Allowed

Yogendra Kumar Tiwari v. State of U.P.

Allahabad HC28 Jan 2023BAIL/53219/2022

Case brief

AI extract

What is this about?

Single Judge of the Allahabad High Court granted bail to the applicant in an N.D.P.S. Case involving alprazolam possession, applying the Supreme Court's ratio in Union of India vs. Shiv Shankar Keshari. Bail granted subject to furnishing bond, sureties, and strict undertaking not to tamper with evidence or abscond.

What did the court decide?

Applicant released on bail by furnishing personal bond and two sureties subject to non-tampering with evidence and mandatory court appearances.

Yogendra Kumar Tiwari Vs State of U.P. — Narcotics (NDPS) | Allahabad HC (2023)

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Court No. - 78

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 53219 of 2022

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Applicant :- Yogendra Kumar Tiwari Opposite Party :- State of U.P. Counsel for Applicant :- Satya Prakash Mishra,Rameshwar Prasad Mishra

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Counsel for Opposite Party :- G.A.

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Hon'ble Deepak Verma,J.

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Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

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The instant bail application has been filed on behalf of the applicant Yogendra Kumar Tiwari with a prayer to release him on bail in Case Crime No.198 of 2022, under Section 21/22 N.D.P.S. Act, P.S.G.R.P., District Prayagraj, during pendency of the trial.

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Prosecution case is that 230 gram alprazolam powder have been recovered from two accused persons. It is argued by learned counsel for the applicant that from the possession of applicant, 110 gram alprazolam powder has been recovered. It is next argued by the learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case due to prior history. Recovery is false and planted. There is no independent witness regarding alleged recovery. The incident took place at railway station. He next argued that recovered contraband substance is slightly above commercial quantity. Mandatory provisions of N.D.P.S. Act have not been complied with while arresting the applicant. The applicant is languishing in jail since 26.06.2022. 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 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.

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Learned A.G.A. has opposed the bail prayer of the applicant.

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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

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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 that the recovered contraband substance is below commercial quantity 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.

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Let the applicant Yogendra Kumar Tiwari , who is involved in aforesaid 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.

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(i) The applicant shall not tamper with the evidence or threaten the witnesses.

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(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.

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(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.

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(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.

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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.

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In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.

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Order Date :- 28.1.2023 SKD

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Digitally signed by :- SURJIT KUMAR DEY High Court of Judicature at Allahabad

Yogendra Kumar Tiwari v. State of U.P.

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Yogendra Kumar Tiwari v. State of U.P.

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