Allowed

Mohit v. State of U.P.

Allahabad HC23 Mar 2023BAIL/55434/2022

Case brief

AI extract

What is this about?

Single Judge of Allahabad High Court considered bail application under Section 37 of NDPS Act. Court held non-compliance of Section 50 likely entitled applicant to bail absent substantial probable cause of guilt, refusing to adjudicate innocence. Bail granted with conditions.

What did the court decide?

Applicant released on bail with personal bond and two reliable sureties subject to specific conditions regarding attendance and trial conduct.

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

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Court No. - 86

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 55434 of 2022

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Applicant :- Mohit Opposite Party :- State of U.P. Counsel for Applicant :- Nikhil Kumar,Prashant Kanha Counsel for Opposite Party :- G.A.

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Hon'ble Vivek Kumar Singh,J.

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Counter affidavit filed today is taken on record.

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

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This bail application has been preferred by the accused-applicant, Mohit , who is involved in Case Crime No. 947 of 2022 under Section 8/20 N.D.P.S. Act, Police Station- Kosikalan, DistrictMathura.

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There is allegation in the First Information Report cum- recovery memo that three persons were found sitting on seven bags which was filled with Ganja and after seeing the police all the persons ran away.One person was caught.Learned counsel for the applicant has submitted that applicant has been falsely implicated in this case. In seven bags 185 kg. Ganja was found.Only one sample of 5 kg. was drawn and remaining 180kg. Ganja was kept in separate bag.As per instruction no. 01/81 the samples were not prepared from all the bags recovered.

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He further submits that the mandatory provisions contained in sections 41,50,52,53 & 5792) of the NDPS Act were not complied with while making the alleged search and 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. He is in jail since 30.11.2022 and he undertakes that he will not misuse liberty, if granted.

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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 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 applicant Mohit be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions-

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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

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

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Identity, and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

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It is further directed that the court below concerned shall conclude the trial as expeditiously as possible, preferably within a period of six months, without granting any unnecessary adjournments to either of the parties.

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Order Date :- 23.3.2023 CS/-

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

Mohit v. State of U.P.

Case brief

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Mohit v. State of U.P.

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