IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE ROHIT ARYA ON THE 18^th OF NOVEMBER, 2022 MISC. CRIMINAL CASE No. 51149 of 2022 BETWEEN:-

BALKISHAN MEENA S/O SHRI KANHAIYALAL MEENA, AGED ABOUT 35 YEARS, OCCUPATION: LABOUR R/O NIVERI POLICE STATION FAATEHGARH DISTRICT-GUNA (MADHYA PRADESH)

.....APPLICANT (BY SHRI ASHISH SINGH JADOUN-ADVOCATE)

AND STATE OF MADHYA PRADESH THROUGH POLICE STATION KOTWALI, DISTRICT-GUNA (MADHYA PRADESH)

.....RESPONDENT (BY SHRI RAJESH SHUKLA-LEARNED DEPUTY ADVOCATE GENERAL)

This application coming on for admission this day, the court passed the following:

ORDER

This is the third repeat bail application under Section 439 Cr.P.C. filed on behalf of the applicant. His first application was dismissed as withdrawn vide order dated 06th June, 2022 in M.Cr.C. No.13018 of 2022. Second application was dismissed as withdrawn on 3rd September, 2022 in M.Cr.C.

No.32462 of 2022 with liberty to revive the prayer after two months.

The applicant is in custody since 02/10/2021 in connection with Crime No.735/2021 registered at Police Station Kotwali, Guna for the offence punishable under Section 8/21 of NDPS Act.

As per the prosecution story, co-accused Dilkush Meen was riding a motorcycle while present applicant Balkishan was sitting on the pillion seat. Upon interception 50gms., smack has been recovered from the possession of the present applicant. Accordingly, case has been registered against the applicant and co-accused.

Investigation is complete. Challan has been filed.

Co-accused Dilkush Meena has been granted the benefit of bail by this Court vide order dated 06th June, 2022 in M.Cr.C. No.23230 of 2022.

Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated. Investigation is complete. Challan has been filed, therefore, he is not required for further custodial interrogation. Applicant has already suffered jail incarceration since 02/10/2021. Applicant is a poor person and due to long jail incarceration, the family is in penury. On early occasion applicant was given the liberty of two months' to revive the prayer. Co-accused Dilkush has been enlarged on bail by this Court vide order dated 06th June, 2022 in M.Cr.C. No.23230 of 2022. Applicant shall abide by such terms and conditions as may be deemed fit and proper for his enlargement on bail. Trial is not likely to be concluded early in near future. Under such circumstances, learned counsel prays for enlargement on bail on such terms and conditions this Court deems fit and proper.

Per contra, learned counsel for respondent/State opposes the bail application supporting the order impugned with the submission that complicity of the applicant in the instant crime cannot be ruled out, as applicant was found in conscious possession of 50 gms. smack. As such, no exception can be taken in the matter of grant of bail to the applicant. Besides, applicant has criminal history. However, he does not dispute the fact regarding enlargement of the co-accused on bail.

At this stage, learned counsel for the applicant submits that the applicant has done introspection and is willing to donate Rs.1,00,000/- (Rs. One Lakh only) for providing basic amenities, food, clothing and such other things for the welfare of the have-nots or underprivileged homeless people residing at the places like Vriddhashram, Vidhwa Ashram, Balika Ashram and Anathalaya, etc.

Upon hearing learned counsel for the parties but without commenting upon the rival contentions touching merits of the case but regard being had to the fact that the applicant is in custody since 02/10/2021 and in view of the liberty granted to the applicant on 03rd September, 2022 as well as maintaining parity with the co-accused Dilkush Meena, who has already been enlarged on bail by this Court (supra), applicant is held entitled to be enlarged on bail but with stringent conditions.

Consequently, the application of the applicant filed under Section 439 of the Criminal Procedur