An accused is entitled to bail under Section 37 of the NDPS Act if there is prima facie non-compliance of mandatory provisions of Section 50 of the NDPS Act during the recovery of contraband.

Court No. - 78

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44238

of 2022

Applicant :- Chhotu Alias Lalit Sharma

Opposite Party :- State of U.P.

Counsel for Applicant :- Anil Kumar Singh,Ranjeet Singh

Counsel for Opposite Party :- G.A.

Hon'ble Deepak Verma,J.

Rejoinder affidavit has been filed today in the Court, is taken on

record.

Heard Sri Anil Kumar Singh, learned counsel for the applicant,

Sri Ram Adhar Ram, learned A.G.A. for the State and perused

the record.

The instant bail application has been filed on behalf of the

applicant with a prayer to release him in Case Crime No. 248 of

2022, registered under Sections 8/22 of NDPS Act, Police

Station Etmaddulah, District Agra during pendency of the trial.

As per prosecution story, two persons intercepted by police

party and recovered 1 kg and 400 gm of diazepam.

Learned counsel for the applicant submitted that the applicant is

innocent and has been falsely implicated in the present case due

to ulterior motive. It is alleged that from the possession of

applicant 750 gm of diazepam has been recovered. The

recovery is false and planted. At the time of recovery,

mandatory provisions of NDPS Act has not been complied with

by the authority. He next submitted that co-accused, namely,

Shivam has been granted bail by co-ordinate Bench of this

Court vide order dated 29.06.2022 and the applicant's case is

identical to the co-accused, hence, the applicant is also entitled

for bail on the ground of same footing. Criminal history of the

applicant has been explained in para 6 of the affidavit and para

5 of the rejoinder affidavit. The applicant is languishing in jail

since 30.04.2022. In case, the applicant is released on bail, he

will not misuse the liberty of bail and co-operate in trial. At the

stage of consideration of bail it cannot be decided whether offer

given to the applicant and his consent obtained was voluntary.

These are the questions of fact which can be determined only

during trial and not at the present stage. In case of prima facie

non-compliance of mandatory provision of Section 50 the

accused is entitled to be released on bail within the meaning of

Section 37 of N.D.P.S. Act.

Learned A.G.A. has opposed the bail prayer of the applicant.

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.

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.

Let the applicant, Chhotu @ Lalit Sharma, who is involved in

the aforesaid case crime, 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 subject to following

conditions. Further, before iss