Anup Burnval Vs State of U.P. Thru. Prin. Secy. Deptt. of Home , Lko.

Neutral Citation No. - 2024:AHC-LKO:59078

Court No. - 32

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8777 of 2024

Applicant :- Anup Burnval Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home , Lko. Counsel for Applicant :- Mohammad Irfan Siddiqui Counsel for Opposite Party :- G.A.

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Hon'ble Shree Prakash Singh,J.

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Matter has been taken up through video conferencing.

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Supplementary affidavit filed today is taken on record.

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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 with a prayer to release the applicant on bail during the trial in Case Crime No. 0476 of 2023, under Section 8/20/25/29 of Narcotic Drugs and Psychotropic Substances Act, P.S. Sushant Golf City, District Lucknow.

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As per allegation in the F.I.R. contraband substance, i.e., 11.900 kg ganja is said to have been recovered from the applicant including co-accused Rajendra Burnval by the police.

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It is contended by learned counsel for the applicant that the applicant is innocent and he has been falsely planted by the police. Contraband substance, i.e., 11.900 kg ganja, which is said to have been recovered from the possession of the applicant, is below the commercial quantity and there is no public eye witness of the alleged recovery. He submits that the applicant was not arrested on spot and no contraband substance was recovered from his possession and the case of the applicant is squarely different that that of the other co-accused persons from whom contraband substance has been recovered. He submits that there is non-compliance of Section 50 of N.D.P.S. Act and in support of his contention, he has placed reliance upon the Judgment of the Apex Court rendered in the case of Arif Khan @ Agha Khan vs. State of Uttarakhand, (2018) 18 SCC 380 wherein it has been held that mandatory procedure of Section 50 of the N.D.P.S. Act has to be complied with in regard to search and recovery. Criminal history of the applicant

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has specifically been explained in para 25 of the bail application. The applicant is in jail since 20.6.2024. In case, he is granted bail, he will not misuse the liberty of bail and would cooperate in the trial proceedings.

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Per contra, learned A.G.A. opposed the prayer of bail and submits that applicant was involved in committing the aforesaid offence as contraband substance i.e., 11.900 kg ganja has been recovered from his possession and, as such, the applicant is not entitled to be released on bail.

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Having heard the learned counsel for the parties and after perusal of record, it is evident that recovered contraband substance, i.e.. 11.900 kg ganja is below the commercial quantity; there is no independent public eye witness of the alleged recovery; there is non compliance of Section 50 of the NDPS Act; the criminal history of the applicant has been explained in para 25 of the bail application; and the applicant is languishing in jail since 20.6.2024.

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Considering the submissions of learned counsel of both sides, nature of accusation and severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment and considering larger mandate of the Article 21 of the Constitution of India and, without expressing any view on the merits of the case, I find it to be a case of bail.

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Let the applicant Anup Burnval involved in the aforementioned 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, with the following conditions:-

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(1) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, or otherwise during the investigation or trial;

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(2) 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. He 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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(3) 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

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313 Cr.P.C.; and

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(4) In case, the applicant misuses 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, 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 identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison.

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It is clarified that the observations made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the merits of the case.

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Order Date :- 29.8.2024 Ram Murti

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Digitally signed by :- RAM MURTI YADAV High Court of Judicature at Allahabad, Lucknow Bench

Anup Burnval v. State of U.P. Thru. Prin. Secy. Deptt. of Home , Lko.

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Anup Burnval v. State of U.P. Thru. Prin. Secy. Deptt. of Home , Lko.

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Anup Burnval vs State of U.P. Thru. Prin. Secy. Deptt. of Home , Lko.