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2021 DIGILAW 256 (ALL)

Rahul v. State of U. P.

2021-02-10

KARUNESH SINGH PAWAR

body2021
JUDGMENT : Karunesh Singh Pawar, J. 1. Heard learned Counsel for the applicant, learned Additional Government Advocate for the State and perused the record. 2. According to prosecution story the applicant has been arrested at 6.10 a.m. by the police party. The applicant has told his name and from his personal search 290 g.m. smack was recovered. Country made pistol of 12 Bore and 2 live cartridges have also been recovered from the applicant. Learned Counsel for the applicant submits that there is no compliance of mandatory provisions of section 50 of N.D.P.S. Act as he has not been apprised about his right to be searched before the Gazetted Officer or the Magistrate. 3. It is the admitted case of the prosecution that the applicant has not been produced before the Magistrate or Gazetted Officer. None of the police officer of the raiding party who recovered the alleged contraband from him were the Gazetted Officer hence they were not empowered to make the search from the applicant as provided under section 50 of N.D.P.S. Act except in the presence of a Magistrate or Gazetted Officer. 4. Learned Counsel for the applicant submits that the alleged recovery is false and planted. It has been further submitted that one more case under Arms Act has been slapped on the applicant. He submits that the applicant is innocent and has been falsely implicated. The recovered quantity is above commercial. 5. Learned Counsel next contended that there is no independent public witness of the alleged recovery. Other mandatory provisions under sections 42, 55 and 57 of N.D.P.S. Act have also not been complied with. 6. Learned Counsel also submits that the applicant is in jail since 12.10.2019 and the applicant has no criminal history. 7. It is further submitted that there is no possibility of the applicant of fleeing away from judicial custody or tampering with the witnesses. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail. 8. Learned A.G.A. opposed the prayer for bail but could not dispute the aforesaid facts as argued by the learned Counsel for the applicant. He submits that the recovery of alleged contraband is of commercial quantity and the applicant is not liable to be enlarged on bail. 9. 8. Learned A.G.A. opposed the prayer for bail but could not dispute the aforesaid facts as argued by the learned Counsel for the applicant. He submits that the recovery of alleged contraband is of commercial quantity and the applicant is not liable to be enlarged on bail. 9. Having regard to all the facts and circumstances and keeping in view the nature of offence, evidence in support of accusation, complicity of the accused, arguments, arguments advanced by learned Counsel for the parties, as also considering the twin condition as mentioned in section 37(1)(b) of NDPS Act having been satisfied, in as much as there is no likelihood of the accused applicant of committing similar offence in future; there is no previous criminal history, and without expressing any opinion on the merits of the case, I find it to be a fit case for enlarging the applicant on bail. 10. Let the applicant Rahul @ Gaynu Misra involved in Case Crime No. 370 of 2019, under section 8/21, N.D.P.S. Act, Police Station Masauli, District Barabanki, 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 with the following conditions which are being imposed in the interest of justice:-- (i) The applicant will not tamper with the evidence during the trial. (ii) The applicant will not pressurize/intimidate the prosecution witness. (iii) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. (iv) The applicant shall file an undertaking to the effect that 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. (v) 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. (v) 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. (vi) 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.