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2015 DIGILAW 2700 (ALL)

Dilip Kumar Verma v. Union of India

2015-09-01

MANOJ MISRA

body2015
JUDGMENT Manoj Misra, J. Heard Sri Kamal Krishna, Senior Advocate assisted by Sri Pradeep Kumar Rai counsel for the applicant, Sri Sanjay Kumar Singh for the Central Bureau of Narcotics. 2. The present bail application has been filed by the applicant in case crime no. Nil of 2014, under Section 8/21 N.D.P.S. Act, police station Central Narcotics Bureau, Ghazipur, District-Ghazipur. with the prayer to enlarge him on bail. 3. The submission of the learned counsel for the applicant is that according to the prosecution case from the Dickey of a motor cycle which was being allegedly driven by the applicant 530 gms. of heroin was recovered which was sent for chemical examination. According to the seizure memo, 2.5 Gms. sample was drawn and sent for chemical examination. According to the chemical analysis report, in the sample, the heroin content was found to be 1.1%. It has been submitted that the vehicle from which the recovery is said to have been made is not registered in the name of the applicant or any of his family member. It has next been submitted that the alleged recovery has been falsely manipulated at the behest of one D.K. Singh, who is said to be Superintendent of the Central Bureau of Narcotics, posted at Ghazipur. It has been submitted that the brother of the applicant, namely, Sunil has a jewelery shop, in connection with which, Sri D.K. Singh, while he was posted as Inspector, had been making illegal demands, which the brother of the applicant resisted, as a result, on the statement of one Jagroop, a notice was got issued to the brother of the applicant under Section 67 of the N.D.P.S. Act and, thereafter, Sri D.K. Singh had filed a complaint giving rise to Complaint No.1 of 2005, against the brother of the applicant, against which the brother of the applicant filed a Criminal Misc. Application 482 Cr.P.C. No. 14247 of 2005, in which counter affidavit was invited and non-bailable warrant issued against the brother of the applicant in connection with the complaint case was kept in abeyance. It has been submitted that later Sri D.K. Singh was posted in the same District and interestingly he was part of the raiding team which allegedly effected recovery of the contraband article. It has been submitted that later Sri D.K. Singh was posted in the same District and interestingly he was part of the raiding team which allegedly effected recovery of the contraband article. It has been submitted that from the seizure memo, it appears that initially an option was given for search/ seizure in the presence of Gazetted Oficer/ Magistrate but thereafter a consent was seemingly obtained for search in the presence of Sri D.K. Singh, who was a Gazetted Officer in the team. It has been submitted that since D.K. Singh was part? of the raiding team, the effectiveness of the presence of a Gazetted Officer or Magistrate, as mandated by law, got frustrated because he would not be an independent person. It has been submitted that under the circumstances, the recovery shown from the applicant is tainted and since the applicant is a person with no previous criminal history and is in jail since 18.04.2014 therefore is entitled to be released on bail. It has been submitted that the applicant has been falsely implicated by way of revenge and in case he is released on bail he would not misuse liberty. 4. Sri Sanjay Kumar Singh, who has appeared on behalf of Central Bureau of Narcotics, submitted that so far as the malafides alleged against D.K. Singh is concerned, they are not substantiated by mere filing of an application under Section 482 Cr.P.C. by the brother of the applicant because in that application D.K. Singh was not impleaded by name but was impleaded as Inspector through whom the Union of India was sued. It has been submitted that although D.K. Singh was part of the raiding party, but it was not a suggestion from the raiding party to get the applicant searched in presence of D.K. Singh. In fact, it was the own option of the applicant to get searched in the presence of D.K. Singh. It has also been submitted that the investigation revealed that though the vehicle from which the alleged recovery was shown was not registered in the name of the applicant but a sale memo dated 04.04.2014 was executed disclosing that the vehicle was sold to the applicant. However, he could not point out existence of signature of the applicant on the memorandum of sale. 5. However, he could not point out existence of signature of the applicant on the memorandum of sale. 5. Having given thoughtful consideration to the submission of the learned counsel for the parties as also the fact that the motor cycle from where the recovery was made was not registered in the name of the applicant or any of his family members, without commenting upon merits of the case, I am of the opinion that the applicant is entitled to be released on bail. 6. Let applicant Dilip Kumar Verma be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice: - (i) 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. (ii) The applicant 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. (iii) 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, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code. (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 in accordance with law. Bail granted.