Allahabad High Court
Om Prakash Yadav And Another vs Union Of India on 11 August, 2022
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved On:- 03.08.2022
Delivered On:- 11.08.2022
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 56028 of 2021
Applicant :- Om Prakash Yadav And Another
Opposite Party :- Union of India
Counsel for Applicant :- Ashok Pandey, Manmohan Singh, Srestha Pandey
Counsel for Opposite Party :- Krishna Agarawal
Hon'ble Siddharth, J.
1. Heard Sri Brijesh Sahai, learned Senior Counsel assisted by Sri Manmohan Singh, learned counsel for the applicants and Sri Krishna Agarwal, learned counsel for the opposite party.
2. The instant bail application has been filed on behalf of the applicants, Om Prakash Yadav and Amit Yadav, with a prayer to release them on bail in DRI Case No. 02 of 2021, under Section- 8/20 of NDPS Act, 1985, registered as Regular Case No. 687 of 2021, Police Station- D.R.I., District- Varanasi, pendency of trial.
3. There is allegation against the applicant that a truck no. AP05 W 8699 was being driven by the applicant no. 1 and wherein applicant no. 2 was sitting as cleaner / helper was searched on the basis of prior information on 11.01.2021 in the presence of two independent witnesses by the team of Directorate of Revenue Intelligence at 6:00 p.m and the following items were recovered and seized as per recovery memo :-
(i) supply bill dated 22.12.2021 (320 bags) of Nanyatha Agro Feeds, Gudivada, Krishna A.P.
(ii) E-way bill 161282085177 dated 22.12.2020.
(iii) Registration papers of truck, AP05W8699, Form - 23, Insurance certificate, National permit, PUC, Authorization certificate.
(iv) Toll receipt of Dafi, Mohania, Savalaka, Aurangabad, Hazaribag, Rasoiya, Nanguli, Kokpara, Panikoili, Puintola.
(v) Samsung keypad mobile, Lava keypad mobile and Rs. 2,700/- has been recovered from the applicant no. 1.
(vi) Samsung keypad mobile and Rs. 6,300/- has been recovered from applicant no. 2.
4. DRI team informed applicants/accused about recovery of ganja, kept in plastic sacks beneath the load of cattle feeds. Total 135 such plastic sacks were recovered, 6 packets have been recovered from the cabin behind the seat. The total quantity of ganja recovered was 3842.500 kg amounting to Rs. 5,76,37,500/- @ of Rs. 1500 per kg.
5. After making recovery and investigation the Union of India through DRI Officer, Varanasi filed Complaint Case No. 02 of 2021 now registered as Case No. 687 of 2021 with relief to punish the applicant for having committed offence under N.D.P.S. Act. The applicant had filed bail application in the court of District and Session Judge Varanasi, which has been rejected vide order dated 17.02.2021.
6. Learned counsel for the applicant has submitted that the applicant no. 1 has been driving truck for last 4 years and the applicant no. 2 has been with him as helper for last 6 months. The applicant no. 1 has been driving truck of Bittu Dada of Jamshedpur from July, 2019 and at the behest of one, Shri Ram Pravesh Yadav, who resides at Ballia the applicants went to Jamshedpur, where an acquaintance of Ram Pravesh, Ajay Singh @ Pappu, who resides at Mungra Badshahpur (Jaunpur) had handed over truck to the applicants laden with Agro Feeds along with supply bill dated 22.12.2020 (320 bags) of Nanyatha Agro Feeds Gudivada, Krishna A.P. and E-way bill 161282085177 dated 22.12.2020 for being transported to Mundra Badshahpur, District- Jaunpur.
7. The fact is that the loading and transportation of the recovered seized ganja was not in the conscious knowledge of the accused/applicants and during interrogation the applicants have not admitted the said fact. Shri Dharmavarapu V N K Teja the proprietor of M/S Nanyatha Agro Feeds disclosed that one, Shri Mittu Kumar, was driver of the Truck no. APO5W8699 at the time of loading of cattle feeds which was subsequently handed over to the applicant's hence seized ganja was not in conscious possession or absolute control of the Applicants.
8. Applicant no.1 had been driving truck of Bittu Dada from July 2019 i.e., Truck no. JH05T9525. The applicant no.1 remained unemployed for past three months and in anticipation of earning some money the applicants on the instruction of Shri Ram Pravesh Yadav went to Jamshedpur to meet Ajay Singh @ Pappu, who handed over the said truck to the Applicants and directed to deliver cattle feed. Applicants were not aware of the real owner of the truck and laden ganja recovered from truck. As per knowledge of applicants, its owner was Ajay Singh @Pappu, who handed over the said truck to the applicants and directed to deliver cattle feeds.
9. Applicants had never tried to escape, when they were directed to stop the truck and they drove the truck themselves to the Customs (Preventive) Division Varanasi office premises on the direction of DRI team, where during search of the truck the Applicants gained knowledge about laden ganja inside the truck. Applicant no. 1 is a poor person having 3 bigha of land in his father's name, Bank a/c in Purvanchal Bank & SBI and does not have passport. Applicant no.1 has been driving drunk and earning livelihood for himself and for his family.
10. Applicant no. 2 is also poor, and his family owns about 1 bigha of land in his father's name. Applicant no. 2 neither has bank account nor passport and has been earning livelihood for himself and his family. Nothing incriminating has been recovered from the applicants. The jurisidictional police authority also reported no adverse remark against both the applicants as stated in para 25 of the chargesheet. Deputy Director DRI Lucknow Zone unit Lucknow was directed to follow up at the address of accused / applicants, but nothing was found. The appilcants have never been implicated in any criminal cases and this is their first implication. They are in jail since 11.01.2021.
11. A Counter affidavit has been filed by the counsel for Directorate of Revenue Intelligence wherein he has stated that ganja weighing 3842.500 kg ganja was recovered from the truck wherein the applicants were found traveling kept in 135 sacks. Total 1005 small and big packets were recovered. In addition six bags were recovered from the cavity adjacent to the cabin wall. In the statement of the applicant recorded under Section 167 of the N.D.P.S Act, they admitted their involvement in illicit transportation of seized ganja. The sample sent have been tested positive. Co-accused on whose instance the illicit ganja was transported to Jaunpur were traced and identified by the applicants. Their names were, Ajay Singh @ Pappu and Om Prakash Yadav. The offences alleged are fully made out against the applicants and they do not deserve to be enlarged on bai.
12. After hearing the rival contentions, this Court finds that the applicants have no criminal history to their credits. They were having the valid documents for transportation of the food grains loaded in their truck. There is no allegation that the papers of the truck were manipulated. The Senior Counsel for applicants has submitted that the applicants were the employees of the transporter and after the goods were loaded in the truck and the supply bill, e-way bill, etc., were given to them, they left for the destination. They were not aware of the hidden packets kept along with hidden sacks of the food grains and they have been falsely implicated in this case.
13. After hearing the rival contentions and the fact that the applicants do not appear to be habitual offender, and are in jail since 11.01.2019. They are held entitled to be enlarged on bail.
14. Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018) 3 SCC 22 and recent judgment dated 11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021 and without expressing any opinion on the merits of the case, the Court is of the view that the applicants have made out a case for bail. The bail application is allowed.
15. Let the applicants, Om Prakash Yadav and Amit Yadav, be released on bail on their 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 issuing the release order, the sureties be verified.
(i) The applicants shall not tamper with the evidence or threaten the witnesses.
(ii) The applicants shall file an undertaking to the effect that they 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.
(iii) The applicants shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of their absence, without sufficient cause, the Trial Court may proceed against them under Section 229-A of the Indian Penal Code.
(iv) In case the applicants misuse the liberty of bail during trial and in order to secure their presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the Court on the date fixed in such proclamation then the Trial Court shall initiate proceedings against them in accordance with law under Section 174-A of the Indian Penal Code.
(v) The applicants 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 absence of the applicants are deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against them in accordance with law.
In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Order Date :- 11.08.2022 Rohit