Allowed

Amit Agarwal @ Koko v. State of U.P.

Allahabad HC24 Jan 2023BAIL/55427/2022

Case brief

AI extract

What is this about?

The High Court of Judicature at Allahabad granted bail to the applicant in a case under Sections 21/22 of N.D.P.S. Act. The Court held it is a fit case for bail without expressing an opinion on merits, relying on Union of India vs. Shiv Shankar Keshari regarding the limited scope of Section 37 inquiries.

What did the court decide?

Release on bail with personal bond and two sureties on furnishing of underkings against tampering with evidence.

Amit Agarwal @ Koko 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. - 55427 of 2022

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Applicant :- Amit Agarwal @ Koko Opposite Party :- State of U.P. Counsel for Applicant :- Sudhir Dixit,Anupam Shyam Dwivedi,Smt. Richa Dixita 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, Sri Ram Adhar Ram, learned A.G.A. for the State and perused the record.

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The instant bail application has been filed with a prayer to release the applicant on bail in Case Crime No. 720 of 2022, registered under Sections 21/22 of N.D.P.S. Act, Police Station Banna Devi, District Aligarh during pendency of the trial.

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It is alleged in the F.I.R. that 245 gm. diazepam recovered from the possession of the applicant. 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 recovered amount is below the commercial quantity. The alleged recovery is false and planted. The police authority did not comply the provision of Sections 50, 51 and 52 of N.D.P.S. Act. No independent witness of the alleged recovery. Seizer of contraband (as stated) material is in violation of standing order/instruction No.1 of 1989 dated 13.06.1989. The applicant is languishing in jail since 01.10.2022. In case, the applicant is released 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 releasing the accused on bail that the court is

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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 ratio of the Apex Court's judgment in the case of Union of India (supra), 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, Amit Agarwal @ Koko, 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.

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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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(v) The applicant shall remain present in person before the Trial

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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 :- 24.1.2023 Meenu Singh

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Digitally signed by :- MEENU SINGH High Court of Judicature at Allahabad

Amit Agarwal @ Koko v. State of U.P.

Case brief

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Amit Agarwal @ Koko v. State of U.P.

Case brief

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