An accused is entitled to bail in case of prima facie non-compliance of mandatory provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Court No. - 74

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 55594

of 2021

Applicant :- Sushil

Opposite Party :- State Of U.P. Through Its Secretary Home

Counsel for Applicant :- Sanjay Sharma,Rajeev Giri

Counsel for Opposite Party :- G.A.

Hon'ble Saurabh Lavania,J.

Heard learned counsel for the applicant and learned A.G.A for

the State.

This bail application has been preferred by the accused-

applicant,Sushil, who is involved in Case Crime No. 445 of

2021, under Section 29 of N.D.P.S Act, Police Station- Gangoh,

District- Saharanpur.

Learned counsel for the applicant while pressing the bail

application submitted that the name of the applicant has been

surfaced in the present case on the statement given by three

accused persons who were arrested from place of crime.

Nothing has been recovered from the possession of the

applicant. He submitted that co-accused who were arrested have

been released on bail by the Court below vide order dated

20.09.2021 and 30.09.2021 passed in Case No. 3467 of 2021

and 3494 of 2021 respectively. The quantity of alleged recovery

from the possession of the co-accused, who were arrested on

sport is much below the commercial quantity. There is no public

witness of alleged recovery. It is averred in the affidavit in

support of the bail application that mandatory provision of

Sections 50 and 57 of N.D.P.S Act have not been complied

with.

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. The applicant has no

criminal history to his credit and is in jail since 10.10.2021.

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 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 pre