Bikash Tharu vs State of U.P. Thru. Principal Secy. Home Lko.

Neutral Citation No. - 2025:AHC-LKO:30857

Court No. - 13

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2688 of 2025

Applicant :- Bikash Tharu Opposite Party :- State Of U.P. Thru. Principal Secy. Home Lko. Counsel for Applicant :- Ashok Kumar Shukla Counsel for Opposite Party :- G.A.

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Hon'ble Manish Mathur,J.

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Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State and perused the record.

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This first bail application has been filed with regard to Case Crime No. 412 of 2021, under Section 08/20 N.D.P.S., Police Station Motipur, District Bahraich.

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As per contents of FIR, incident is said to have taken place on 08.09.2021 when the applicant was apprehended with 2.5 kg. charas in his possession while he was entering this country through Nepal.

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It is submitted that applicant has been falsely implicated in allegations levelled against him which would be evident from the fact that there is serious violation of Sections 42, 50 and 52A of the N.D.P.S. Act. It is submitted that no sampling was done in the presence of either any Magistrate or a Gazetted Officer. It is submitted that applicant is under incarceration since 08.09.2021 with only one prosecution witness out of nine having been examined.

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Learned Additional Government Advocate appearing on behalf of State has opposed bail application with the submission that the contents of FIR clearly indicate the aspect of applicant's complicity in allegations levelled against him. It is submitted that provisions of Section 52-A N.D.P.S. Act has subsequently been held to be merely procedural and there is substantive compliance of Section 50 of the Act. It is, however, admitted that applicant does not have any previous criminal history.

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Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is

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not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-

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"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."

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"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."

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Upon consideration of submissions advanced by learned counsel for parties, prima facie, subject to evidence being led in trial, at this stage, it appears that the aspect of violation of provisions of N.D.P.S. Act are required to be considered by Trial Court by examination of evidence. There does not appear to be any independent witness of the recovery allegedly made from the applicant who is under incarceration since 08.09.2021. As per report of Trial Court dated 15.04.2025, only one prosecution witness has been examined till date and that too a cross-examination is still pending. Charge-sheet indicates nine prosecution witnesses. There does not hope to be any early conclusion of trial.

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Looking to the nature of allegations levelled against the applicant and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with the witnesses has been alleged, in view of aforesaid discussion, conditions under Section 37 of NDPS Act stand satisfied. Prima facie, this Court finds, the applicant is entitled to be released on bail in this case.

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Accordingly bail application is allowed .

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Let applicant, Bikash Tharu involved in the aforesaid case crime be released on bail on his/her furnishing a personal bond and two local sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

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(i) The applicant shall deposit passport and shall not leave India

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without previous permission of the court;

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(ii) The applicant shall file an undertaking to the effect that she/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 through his/her counsel. In case of his/her absence, without sufficient cause, the trial court may proceed against him/her under Section 229-A of the Indian Penal Code.

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(iv) In case, the applicant misuses the liberty of bail during trial and in order to secure his/her 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/her, 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 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/her in accordance with law.

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Office is directed to intimate the prosecution agency to communicate this order granting bail to concerned Registration Officer appointed under Rule 3 of the Registration of Foreigners Rules,1992 for further communication to all concerned authorities including civil authorities.

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Order Date :- 23.5.2025 Satish

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Digitally signed by :- SATISH KUMAR BHARATI High Court of Judicature at Allahabad, Lucknow Bench

Bikash Tharu v. State of U.P. Thru. Principal Secy. Home Lko.

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