Single judge allowed bail to Bheema Yadav charged under N.D.P.S. Act, holding it is a fit case applying Union of India vs. Shiv Shankar Keshari, noting questions of fact like voluntariness of consent are for trial.
Released on bail with personal bond and two sureties subject to conditions ensuring presence and no tampering.
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Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 56991 of 2022
Applicant :- Bheema Yadav Opposite Party :- State of U.P. Counsel for Applicant :- Pushpendra Singh Counsel for Opposite Party :- G.A.
Hon'ble Deepak Verma,J.
Heard Shri Vahid Jamal holding brief of Pushpendra Singh, learned counsel for the applicant, learned A.G.A. for the State and perused the records.
The instant bail application has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No. 1024 of 2022, under Section 21/22 of N.D.P.S. Act, P.S.Sikandarabad, District- Bulandshahar, during pendency of the trial.
It is alleged in the FIR that from the possession of the applicant, 900 Alprazolam tablets weighing 108 gms. was recovered. It is argued by the learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case. There is no evidence of the alleged recovery. The recovery is false and planted against the applicant. Mandatory provisions of Sections 50, 51 & 52 of N.D.P.S. Act have not been complied with while arresting the applicant. There is no FSL report regarding this. Moreover, there is no whisper about name of the contraband Aprazolam tablets, whereas the recovered item is medicine. The applicant has explained his criminal history in Para 2 of the supplementary affidavit. The applicant is languishing in jail since 16.11.2022. In case, the applicant is enlarged on bail he will not misuse the liberty of bail and co-operate 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.
Learned A.G.A. has opposed the bail prayer of the applicant but could not dispute the facts raised by the applicant's counsel.
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 Bheema Yadav, who is involved in 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 the 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.
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 :- 9.2.2023 Rama Kant
Digitally signed by :- RAMAKANT High Court of Judicature at Allahabad
2 issues framed by the court
Whether the merit of the case can be decided at the bail stage.
Whether the applicant can be released on bail given the alleged non-compliance of mandatory provisions during arrest.
Colour shows how this judgement treated each authority
Union of India vs. Shiv Shankar KeshariApplied¶10
Union of India vs. Shiv Shankar Keshari (2007) 7 SCC 798 · Who else cites this
4 provisions across 4 enactments
Bheema Yadav
Deepak Verma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
