Bachhau vs State of U.P. Thru. Prin. Secy. Home Lko.

Neutral Citation No. - 2025:AHC-LKO:26689

Court No. - 13

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7066 of 2024 Applicant :- Bachhau Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Manoj Kumar Singh,Shailendra Kumar 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. Supplementary affidavit filed today is taken on record.

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This first bail application has been filed with regard to Case Crime No.89 of 2024, under Section 8/20 NDPS Act registered at Police Station Dargah Sharif, District Bahraich.

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As per contents of FIR/ recovery memo, incident is said to have taken place on 10.03.2024 when a police team reportedly intercepted the applicant and confiscated illegal narcotics namely charas from the applicant being 2065 gm.

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Learned counsel for applicant submits that applicant has been falsely implicated in charges levelled against him and although recovered quantity is above commercial limit but there is serious violation of Section 52A of the NDPS Act inasmuch as the recovery memo does not contain any signatures of the Gazetted Officer whose name is indicated in the recovery memo. It is submitted that applicant is under incarceration since 11.03.2024 with previous criminal history of fourteen cases duly explained. It is submitted that as yet only statement of P.W.1 has been recorded during the course of trial with five other witnesses still remaining and therefore there cannot be any hope of early conclusion of trial.

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Learned Additional Government Advocate appearing on behalf of State has opposed the bail application with the submission that the recovery memo clearly bears the signature of Gazetted Officer and therefore there is substantial

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compliance of Sections 50 and 52A NDPS Act. It is however admitted that previous criminal history of applicant has been explained. He is under incarceration since 11.03.2024.

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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 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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Considering submissions advanced by learned counsel for parties and upon perusal of material available on record, it appears that was a year has passed with applicant being incarcerated under trial and as per submission, only statement of P.W.1 has been recorded with five other prosecution witnesses still remaining. There cannot be any hope of early conclusion of trial. The aspect of violation of Section 52A NDPS Act would be subject matter of evidence during the course of trial. Previous criminal history of applicant has been explained.

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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

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been alleged, 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, Bachhau involved in the aforesaid case crime be released on bail on his/her furnishing a personal bond and two 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 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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(ii) 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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(iii) 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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(iv) 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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Order Date : - 7.5.2025 Subodh/-

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Digitally signed by :- SUBODH KUMAR SINGH High Court of Judicature at Allahabad, Lucknow Bench

Bachhau v. State of U.P. Thru. Prin. Secy. Home Lko.

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