Allahabad High Court
Rakshit Birthare vs Union Of India And 2 Others on 15 December, 2022
Author: Deepak Verma
Bench: Deepak Verma
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 74 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27227 of 2022 Applicant :- Rakshit Birthare Opposite Party :- Union Of India And 2 Others Counsel for Applicant :- Shrikrishna Shukla Counsel for Opposite Party :- Ashish Pandey,G.A. Hon'ble Deepak Verma,J.
Heard Sri Shrikrishna Shukla, learned counsel for the applicant, Sri Ashish Pandey, learned counsel for the informant, Sri Manoj Kumar Dwivedi, learned A.G.A. for the State and perused the record.
The instant bail application has been filed with a prayer to release the applicant on bail in Case Crime No. VIII/56/DZU/2021, registered under Sections 8/22/27/29 of NDPS Act, Police Station NCB/DZU/R.K. Puram, Delhi, during pendency of the trial.
It is alleged in the complaint that on 10.10.2021 the NCB, New Delhi received information from reliable source that one rider is giving suspected parcel to DTDC Courier, Jeet Enterprises, C-6, Sector-5, NOIDA, U.P. for booking and presently suspected parcels to containing narcotics drugs and psychotropic substance thereafter NCB team raided over mentioned premises and recovered the parcel bearing consignment No.X35389219 on which the name of consignor/sender was mentioned Parichay Arora and name of the consignee/receiver was mentioned as Rakshit Kumar. When envelop was opened and it was found containing one Ziploc pouch wrapped in white paper, containing nine blots of LSD drugs weighing 0.16 gram.
Learned counsel for the applicant submitted that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. Applicant is not consignee nor he booked the aforesaid contraband substance. Applicant was summoned on 07.10.2021 under Section 67 of NDPS Act whereas he has specifically stated that one Mayukh Nandwana booked the aforesaid contraband drug and before booking the aforesaid drug in applicant's address, Mayukh Nandwana told him that he will take the parcel from his house. The applicant is meritorious student who after completing his Graduation is currently pursuing Post Graduation Diploma in Cyber Security from Maharashtra Institute of Technology, Pune, Maharashtra. Applicant has appeared onlied for examination from jail for his last two papers after seeking due permission from the concerned court below. Applicant has not booked the aforesaid contraband substance and it is very much evident from statement of co-accused Mayukh Nandwana before the NCB under Section 67 of NDPS Act. Mayukh Nandwana in his first statement had not said anything about the applicant but in his second statement and under due pressure and threat he made statement against the applicant. The statement recorded under Section 67 of NDPS Act would not be applicable in lieu of judgment passed by Hon'ble The Apex Court in the case of Tofan Singh Vs. State of Tamil Nadu, (2021) 4 SCC 1. It is further submitted that the consignor/sender is Parichay Arora and the same was booked by Mayukh Nandwana. The applicant has no connection with Parichay Arora. There is no material available on record to connect the applicant from the alleged drugs as well as from the consignor-Parichay Arora. The alleged recovery is less than commercial quantity. The provisions narrated in NDPS Act has not been complied with during search. The applicant has no previous criminal history. The applicant is languishing in jail since 30.03.2022. 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.
Per contra, Sri Pandey, informant's counsel as well as learned A.G.A. has vehemently opposed the bail prayer of the applicant and submitted that applicant is indirectly involved in the present case and recovered contraband substance, i.e., LSD was being delivered to the address of applicant and through investigation has been conducted. In support of his contention, he has placed reliance over the judgment of Hon'ble The Supreme Court passed in the cases of Union of India (NCB) etc. Vs. Khalil Uddin etc., 2022 Live Law (SC) 878, Narcotics Control Bureau Vs. Mohit Aggarwal, 2022 Live Law (SC) 613 and Union of India Vs. Prateek Shukla, 2021 Law Suit (SC) 193.
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 and circumstances of the case and submissions advanced by learned counsel for the parties, it is evident that the applicant is directly not involved in the present case as co-accused Mayukh Nandwana booked the alleged contraband substance at the address of the applicant which was not delivered to him. Co-accused Mayukh Nandwana in his statement has submitted that he had booked the aforesaid contraband substance on the address of applicant. From the possession of the applicant no contraband substance has been recovered and there is no evidence that earlier the parcel had been sent by the consignor-Parichay Arora to the address of applicant. Applicant is student.
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 to the applicant.
Let the applicant, Rakshit Birthare, 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 issuing the release order, the sureties be verified.
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) 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.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.
(iv) In case the applicant misuse 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.
(v) The applicant 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 applicant is 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 him in accordance with law.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Order Date :- 15.12.2022 Nitin Verma (Deepak Verma, J.)