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2020 DIGILAW 1438 (ALL)

Mahesh Singh v. State of U. P.

2020-12-07

GAUTAM CHOWDHARY

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JUDGMENT : GAUTAM CHOWDHARY, J. 1. Heard learned counsel for the applicant and learned A.G.A. for the State and perused the material brought on record. 2. The present bail application has been filed on behalf of the applicant, Mahesh Singh, with a prayer to release him on bail in Case Crime No. 343 of 2020, under Sections 8/20/22/23/25/60 N.D.P.S. Act, Police Station-Bithoor, District-Kanpur Nagar, during pendency of trial. 3. Submission of counsel for the applicant is that the amount of the contraband (10 Kg. 27 gms. of Charas) which has been allegedly recovered from the possession of the accused is not supported by any independent witness. Other submissions showing the falsity of the prosecution story with regard to the recovery have also been made. Further contention is that the statutory provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 have not been complied with in the right manner. The counsel has also tried to demonstrate the circumstances indicating the false implication of the applicant. It is further submitted that in this case sampling was done on 6.6.2020 at the place of occurrence, which fact is evident from the Case Diary, but the sample was received by Laboratory on 17.7.2020 i.e. by delay of one month and 10 days (copy of the laboratory report dated 24.8.2020 is annexed as Annexure No. 6 to the affidavit), which shows that the sample remained in the custody of the police for more than one month as such there is every possibility of adulteration. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been submitted that the applicant is in jail since 7.6.2020 having no criminal history. 4. In support of his contention learned counsel for the applicant has relied upon the judgment of the Hon'ble Supreme Court in State of Rajasthan vs. Tara Singh, (2011) 11 SCC 559 , in which it has been held as under:- “(1)......... It has also been submitted that the applicant is in jail since 7.6.2020 having no criminal history. 4. In support of his contention learned counsel for the applicant has relied upon the judgment of the Hon'ble Supreme Court in State of Rajasthan vs. Tara Singh, (2011) 11 SCC 559 , in which it has been held as under:- “(1)......... (2) At the very outset, it must be understood that the provisions of Section 50 would no longer be applicable to a search such as the one made in the present case as the opium had been carried on the head in a gunny bag. A Bench of this Court in State of Himachal Pradesh vs. Pawan Kumar, (2005) 4 SCC 350 after examining the discrepant views rendered in various judgments of this Court has found that Section 50 of the Act would not apply to any search or seizure where the article was not being carried on the person of the accused. Admittedly, in the present case, the opium was being carried on the head in a bag. Mr. Abhishek Gupta, the learned counsel for the appellant-State, therefore, appears to be right when he contends that the observations of the High Court that the provisions of Section 50 of the Act would not be applicable was no longer correct in view of the judgment in Pawan Kumar's case. We find, however, that the second aspect on which the High Court has opined calls for no interference. As per the prosecution story the samples had been removed from the Malkhana on the 26th of February, 1998, and should have been received in the laboratory the very next day. The High Court has, accordingly observed that the prosecution had not been able to show as to in whose possession the samples had remained from 26th February, 1998 to 9th March, 1998. The High Court has also disbelieved the evidence of PW-6 and PW-9, the former being the Malkhana in-charge and the latter being the Constable, who had taken the samples to the Laboratory to the effect that the samples had been taken out on the 9th of March, 1998 and not on the 26th February, 1998. The High Court has also disbelieved the evidence of PW-6 and PW-9, the former being the Malkhana in-charge and the latter being the Constable, who had taken the samples to the Laboratory to the effect that the samples had been taken out on the 9th of March, 1998 and not on the 26th February, 1998. The Court has also found that in the absence of any reliable evidence with regard to the authenticity of the letter dated 26th February, 1998 it had to be found that the samples had remained in some unknown custody from the 26th February, 1998 to 9th March, 1998. We must emphasise that in a prosecution relating to the Act the question as to how and where the samples had been stored or as to when they had despatched or received in the laboratory is a matter of great importance on account of the huge penalty involved in these matters. The High Court was, therefore, in our view, fully justified in holding that the sanctity of the samples had been compromised which cast a doubt on the prosecution story. We, accordingly, feel that the judgment of the High Court on the second aspect calls for no interference. The appeal is, accordingly, dismissed. The respondent is on bail. His bail bonds stand discharged.” 5. Learned A.G.A. has vehemently opposed the prayer for bail but could not argue the aforesaid facts. 6. The Apex Court in the Case of Union of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798 has held that the court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. 7. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. 7. Considering the facts of the case and keeping in mind, the ratio of the Apex Court's judgment in the case of Union of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798 , larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. 8. Let the aforesaid applicant, 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 with the following conditions: (1) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial. (2) The applicant shall cooperate in the trial sincerely without seeking any adjournment. (3) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail. (4) 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. (5) In case, the applicant misuses the liberty of bail 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. (6) 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law. (7) In case the applicant has been enlarged on short term bail as per the order of committee constituted under the orders of Hon'ble Supreme Court his bail shall be effective after the period of short term bail comes to an end. (8) The applicant shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored. In case court below is functioning normally, this condition will not apply and applicant shall be enlarged on bail on execution of bail bond and two sureties to the satisfaction of the court below. (9) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. (10) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. 9. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.