Allowed

Omkar v. State of U.P. Thru. Secy. Home Lko

Allahabad HC2 Aug 2024CRLA/2360/2024

Case brief

AI extract

What is this about?

Court allowed bail to appellant Omkar in criminal appeal under NDPS Act. Bail granted as appellant had already served over three years of a five-year sentence, relying on Supreme Court precedents allowing suspension of sentence when substantial jail time is served.

What did the court decide?

Appellant released on bail on furnishing personal bond, two sureties, and depositing 50% of the fine imposed by the trial court.

Omkar vs State of U.P. Thru. Secy. Home Lko — Narcotics (NDPS) | Allahabad HC (2024)

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Court No. - 11 Case :- CRIMINAL APPEAL No. - 2360 of 2024 Appellant :- Omkar Respondent :- State Of U.P. Thru. Secy. Home Lko Counsel for Appellant :- Dinesh Kumar Counsel for Respondent :- G.A.

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Hon'ble Abdul Moin,J.

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(I. A. No. 1 of 2024)

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Heard learned counsel for the appellant and Shri Hansraj Verma, learned A.G.A. for the State-respondents.

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A prayer for bail has been made by the appellant in this criminal appeal, which has been filed against judgment and order dated 06.07.2024 passed by learned Special Judge (NDPS Act), Ambedkar Nagar in NDPS Case No. 93 of 2022 in re: State vs Shankar Lal & another arising out of Case Crime No. 134 of 2021, Police Station Jaitpur, District Ambedkar Nagar whereby the appellant has been convicted and sentenced 5 years rigorous imprisonment alongwith fine under Section 8/20 NDPS Act.

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It has been averred in paragraph 14 of the bail application that the appellant is in jail since 25.07.2021 and thus out of total sentence of 5 years as awarded by learned trial court he has already served more than three years in jail .

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This Court vide order dated 02.08.2024 had required learned A.G.A. to seek instructions pertaining to the period of incarceration of the appellant in jail.

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In pursuance thereof Shri Hansraj Verma, learned A.G.A. has stated on the basis of custody certificate sent by the District Prison, Ambedkar Nagar dated 10.08.2024 that the period the appellant has been incarcerated in jail is 3 years and 15 days.

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The custody certificate is perused and returned back to learned A.G.A.

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Learned counsel for the appellant has placed reliance on judgements of Hon'ble Supreme Court in the case of Bherulal vs The State of Madhya Pradesh passed in Special Leave to Appeal (Crl) No. 8388 of 2024 decided on 22.04.2024 and Atul @ Ashutosh vs State of Madhya Pradesh passed in Criminal Appeal No. 579 of 2024 (arising out of SLP (Crl) No. 1049 of 2024) vide order dated 02.02.2024 to argue that Hon'ble Supreme Court has held that where a substantial period of total sentence has already been spent in jail and there is no

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possibility of the appeal being decided in near future, the convict can be released on bail.

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Considering the judgement of Hon'ble Apex Court in the case of Bherulal (supra) wherein Hon'ble Supreme Court has held that considering that out of total sentence of 4 years the concerned person has already undergone two years in prison and the law being settled that if the sentence imposed by the trial court is for a fixed term then ordinarily the appellate court should consider the plea for suspension of sentence liberally, as such a prima facie case for bail is made out.

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Likewise Hon'ble Supreme Court in the case of Atul @ Ashutosh (supra) has observed that where an accused has already undergone half of the sentence of fixed term sentence of five years then a case for grant of suspension of sentence and grant of bail is made out.

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Accordingly, keeping in view the judgement of Hon'ble Supreme Court in the cases of Bherulal (supra) and Atul @ Ashutosh (supra) and admittedly the appellant having already undergone substantial period of sentence, consequently a case for bail is made out.

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Learned A.G.A. opposes the prayer for bail and submits that conviction of the appellant is on the basis of evidence on record.

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Having heard the submission made by learned counsel for the appellant as well as learned A.G.A and perused the material brought on record, this Court is of the view that appellant is entitled to be released on bail during the pendency of criminal appeal before this Court.

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Hence, prima facie, case for bail is made out, at this stage.

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Accordingly, the application for bail is allowed.

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Let the appellant - Omkar - involved in aforesaid case 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 deposition of 50% of the fine amount imposed by the trial court at the time of his release along with following conditions:-

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(i) The appellant shall cooperate in the disposal of appeal without seeking unnecessary adjournment.

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(ii) The appellant shall not indulge in any criminal activity or

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commission of any crime after being released on bail.

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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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As soon as personal bonds and sureties are furnished, photocopies of the same are directed to be transmitted to this Court forthwith by the trial court concerned to be kept on record of this appeal.

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It is made clear that realization of 50% fine shall be subject to outcome of the appeal.

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Order on the Criminal Appeal

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List this case for final hearing after 8 weeks.

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Order Date :- 14.8.2024

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J. K. Dinkar

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Digitally signed by :- JESHU KUMAR DINKAR High Court of Judicature at Allahabad, Lucknow Bench

Omkar v. State of U.P. Thru. Secy. Home Lko

Case brief

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What did the court decide?

Omkar v. State of U.P. Thru. Secy. Home Lko

Case brief

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