# Mahesh Singh v. State of U.P

- **Citation:** (2020) 12 ILRA 256
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-07
- **Bench:** Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahesh-singh-v-state-of-u-p-45466
- **Pages:** 5

## Headnote

A.G.A.

10 kg 27 gm of Contraband recovered
from
possession
of
accused-sampling
done on 06.-6.2020 but received by the
Laboratory by delay of 1 month and 10
days-sample remained in police custody
for such period-no criminal history-while
considering such application-reasonable
grounds for believing that accused is not
guilty and records its satisfaction.
Bail Granted. (E-9)

List of Cases cited:-

## Text

256 INDIAN LAW REPORTS ALLAHABAD SERIES
2000 on 05.06.2000 has not been denied by
the respondent. It is true that successive
bail applications are permissible under the
changed circumstances. But without the
change in the circumstances the second
application would be deemed to be seeking
review of the earlier judgment which is not
permissible under criminal law as has been
held by this Court in Hari Singh Mann v.
Harbhajan Singh Wajwa & Anr (2001 (1)
SCC 169] and various other judgments."

23. In view of the above, learned
Additional Government Advocate as well
as Sri Arun Sinha, learned counsel for the
complainant
have
submitted
with
vehemence that since no fresh grounds or
events have come up after disposal of the
first bail application and none of the
witnesses have turned hostile rather those
witnesses have supported the prosecution
case and the trial in question is reaching to
complete, therefore, the present applicant
may not be granted bail. They have also
submitted that the submission of learned
counsel for the applicant in respect of long
period of incarceration in jail i.e. about four
years and nine months may not be
sufficient in view of the dictums of Hon'ble
Supreme Court as well as of this Court as
cited above, therefore, the present second
bail application may be rejected.

24. Having heard learned counsel for
the parties and having perused the material
available on record, I am of the considered
opinion that in the light of the settled
proposition of law for filing second bail
application, there is no merit in the
submissions of learned counsel for the
applicant inasmuch as no fresh grounds or
events have been raised which are emerged
after disposal of the first bail application.
As a matter of fact, all the grounds taken in
the second bail application and material
shown to the Court, have already been
considered by this Court while rejecting the
first bail application on 07.10.2016. So far as
the submission on the point of long period of
incarceration in jail is concerned, I am of the
view that in the light of the facts and
circumstances of the issue in question such
ground is not tenable in the eyes of law. It is
made clear that I am not expressing my
opinion on merits of the case as I have only
considered the merit of the second bail
application. It is clarified that my aforesaid
observation
shall
not
affect
the
trial
proceedings in any manner whatsoever as the
learned trial court shall not take any adverse
inference out of my aforesaid observations
while conducting and concluding the trial.

25. Since the learned counsel for the
parties have submitted that all the relevant
witnesses have already been examined
including the eye witness and only the
police officials etc. are left to be examined,
therefore, I hereby direct the learned trial
court to conclude the trial expeditiously,
preferably within a period of six months by
fixing short dates and ensuring the
remaining witnesses to be examined at the
earliest. While ensuring the witnesses to be
examined, the coercive steps as prescribed
under the law may be adopted keeping in
view the guidelines issued from time to
time to meet out the situation of Covid-19,
if any witness deliberately avoids the trial
proceedings. In any case, the trial shall be
concluded by 31st of May, 2021.

26. Accordingly, the instant second
bail application stands rejected.
----------
(2020)12ILR A257
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.12.2020

BEFORE
12 All. Mahesh Singh Vs. State of U.P.
257
THE HON'BLE GAUTAM CHOWDHARY, J.

Crl. Misc. Bail Application No. 38347 of 2020

Mahesh Singh ...Applicant (In Jail)
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Sri Agni Pal Singh

Counsel for the Opp. Party:
A.G.A.

10 kg 27 gm of Contraband recovered
from
possession
of
accused-sampling
done on 06.-6.2020 but received by the
Laboratory by delay of 1 month and 10
days-sample remained in police custody
for such period-no criminal history-while
considering such application-reasonable
grounds for believing that accused is not
guilty and records its satisfaction.
Bail Granted. (E-9)

List of Cases cited:-

1. St. of Raj. Vs Tara Singh, (2011) 11 SCC 559

2. U.O.I. Vs Shiv Shankar Keshari, (2007) 7 SCC
798

(Delivered by Hon'ble Gautam Chowdhary, J.)

1. Heard learned counsel for the
applicant and learned A.G.A. for the State
and perused the material brought on record.

2. The present bail application has
been filed on behalf of the applicant,
Mahesh Singh, with a prayer to release
him on bail in Case Crime No. 343 of 2020,
under Sections 8/20/22/23/25/60 N.D.P.S
Act, Police Station- Bithoor, District-
Kanpur Nagar, during pendency of trial.

3. Submission of counsel for the
applicant is that the amount of the
contraband (10 Kg. 27 gms. of Charas)
which has been allegedly recovered from
the possession of the accused is not
supported by any independent witness.
Other submissions showing the falsity of
the prosecution story with regard to the
recovery have also been made. Further
contention is that the statutory provisions
of Section 50 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 have
not been complied with in the right manner.
The counsel has also tried to demonstrate
the circumstances indicating the false
implication of the applicant. It is further
submitted that in this case sampling was
done
on 6.6.2020
at
the place
of
occurrence, which fact is evident from the
Case Diary, but the sample was received by
Laboratory on 17.7.2020 i.e. by delay of
one month and 10 days (copy of the
laboratory
report
dated
24.8.2020
is
annexed as Annexure No. 6 to the
affidavit), which shows that the sample
remained in the custody of the police for
more than one month as such there is every
possibility of adulteration. It has been
assured on behalf of the applicant that he is
ready to cooperate with the process of law
and shall faithfully make himself available
before the court whenever required and is
also ready to accept all the conditions
which the Court may deem fit to impose
upon him. It has also been submitted that
the applicant is in jail since 7.6.2020
having no criminal history.

4. In support of his contention learned
counsel for the applicant has relied upon
the judgment of the Hon'ble Supreme Court
in State of Rajasthan Vs. Tara Singh,
(2011) 11 SCC 559, in which it has been
held as under:-

"1. ........

2. At the very outset, it must be
understood that the provisions of Section
258 INDIAN LAW REPORTS ALLAHABAD SERIES
50 would no longer be applicable to a
search such as the one made in the present
case as the opium had been carried on the
head in a gunny bag. A Bench of this Court
in State of Himachal Pradesh v. Pawan
Kumar (2005) 4 SCC 350 after examining
the discrepant views rendered in various
judgments of this Court has found that
Section 50 of the Act would not apply to
any search or seizure where the article was
not being carried on the person of the
accused. Admittedly, in the present case,
the opium was being carried on the head in
a bag. Mr. Abhishek Gupta, the learned
counsel for the appellant-State, therefore,
appears to be right when he contends that
the observations of the High Court that the
provisions of Section 50 of the Act would
not be applicable was no longer correct in
view of the judgment in Pawan Kumar's
case. We find, however, that the second
aspect on which the High Court has opined
calls for no interference. As per the
prosecution story the samples had been
removed from the Malkhana on the 26th of
February, 1998, and should have been
received in the laboratory the very next
day. The High Court has, accordingly
observed that the prosecution had not been
able to show as to in whose possession the
samples had remained from 26th February,
1998 to 9th March, 1998. The High Court
has also disbelieved the evidence of P.W. 6
and P.W.9, the former being the Malkhana
incharge
and
the
latter
being
the
Constable, who had taken the samples to
the Laboratory to the effect that the
samples had been taken out on the 9th of
March, 1998 and not on the 26th February,
1998. The Court has also found that in the
absence of any reliable evidence with
regard to the authenticity of the letter dated
26th February, 1998 it had to be found that
the samples had remained in some
unknown custody from the 26th February,
1998 to 9th March, 1998. We must
emphasise that in a prosecution relating to
the Act the question as to how and where
the samples had been stored or as to when
they had despatched or received in the
laboratory is a matter of great importance
on account of the huge penalty involved in
these matters. The High Court was,
therefore, in our view, fully justified in
holding that the sanctity of the samples had
been compromised which cast a doubt on
the prosecution story. We, accordingly, feel
that the judgment of the High Court on the
second aspect calls for no interference. The
appeal is, accordingly, dismissed. The
respondent is on bail. His bail bonds stand
discharged."

5. Learned A.G.A. has vehemently
opposed the prayer for bail but could not
argue the aforesaid facts.

6. 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.

7. 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
12 All. Mahesh Singh Vs. State of U.P.
259
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.

8. Let the aforesaid 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
present before the trial court on each date
fixed, either personally or through his
counsel. In case of his absence, without
sufficient cause, the trial court may proceed
against him under Section 229-A of the
Indian Penal Code;

5. In case, the applicant misuses
the liberty of bail 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.

6. 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 default of this
condition is deliberate or without sufficient
cause, then it shall be open for the trial
court to treat such default as abuse of
liberty of his bail and proceed against him
in accordance with law.

7. In case the applicant has been
enlarged on short term bail as per the order
of committee constituted under the orders
of Hon'ble Supreme Court his bail shall be
effective after the period of short term bail
comes to an end.

8. The applicant shall be enlarged
on bail on execution of personal bond
without sureties till normal functioning of
the courts is restored. The accused will
furnish sureties to the satisfaction of the
court below within a month after normal
functioning of the courts are restored.In
case court below is functioning normally,
this condition will not apply and applicant
shall be enlarged on bail on execution of
bail bond and two sureties to the
satisfaction of the court below.

9. The party shall file computer
generated copy of such order downloaded from
the official website of High Court Allahabad.

10.
The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.

9. In case of breach of any of the
above conditions, it shall be a ground for
cancellation of bail.
----------
260 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)12ILR A260
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.11.2020

BEFORE
THE HON'BLE SHAMIM AHMED, J.

Crl. Misc. Ist Bail Application No. 38874 of 2020

Raju Singh ...Applicant (In Jail)
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Sri Ashutosh Kumar Pandey

Counsel for the Opp. Party:
A.G.A.

Gangster Act-claim that never worked
against public peace -Bail is a rule and Jail
is exception-it appears that Applicant is
not a member or head of any gang-no any
offence committed under chapter 16, 17
and 22.

List of Cases cited: -

1. Dataram Singh Vs St. of U.P. & anr., reported
in (2018)3 SCC 22

(Delivered by Hon'ble Shamim Ahmed, J.)

1. पूरक शपथ पत्र आि दाक्तखल जकया
गया है, उसे पत्रावली पर रखा िाये।

2. वतयमान दाक्तिक प्रकीणय िमानत प्राथयना
पत्र, आवेदक राजू स िंह की ओर से मु०अ०सां० 631
सन् 2020, अन्तगयत धारा 3(1) उत्तर प्रदेश जगरोहबांद
समाि जवरोधी जिया कलाप(जनवारण) अजधजनयम
1986, थाना सराय लखन्सी, िनपद मउ में िमानत
पर मुक्त करने हेतु प्रस्तुत जकया गया है।

3. आवेदक के जवद्वान अजधवक्ता एवां
जवद्वान अपर शासकीय अजधवक्ता को सुना तथा
पत्रावली का पररशीलन जकया।

4. आवेदक के जवद्वान अजधवक्ता ने तकय
प्रस्तुत जकया जक आवेदक को इस प्रकरण में
रांजिशन झूठा फूँसाया गया है, आवेदक
आरोजपत अपराध सांख्या 631 वर्य 2020,
अन्तगयत धारा 3(1) उत्तर प्रदेश जगरोहबांद एवां
समाि
जवरोधी
जिया
कलाप
(जनवारण)
अजधजनयम थाना सराय लखन्सी, िनपद मऊ में
पूणयतया जनदोर् है, उसकी उक्त आरोजपत
अपराध में जकसी प्रकार की सहिाजगता अथवा
सांजलप्तता नहीां रही है, उसने आरोजपत अपराध
काररत नहीां जकया है, उसे आरोजपत अपराध में
झूांठा
शत्रुतावश,
रांजिशन
फांसाया
आरोजपत/नाजमत जकया व कराया गया है।
आवेदक जगरोहबांद नहीां है वह जकसी जगरोह का
सदस्य सरगना अथवा मुक्तखया िी नहीां है।
आवेदक द्वारा किी कोई सांज्ञेय अथवा असांज्ञेय
अपराध काररत नहीां जकया गया है, उसके द्वारा
जगरोहबांद के रूप में िी किी कोई अपराध
काररत नहीां जकया गया है। आवेदक को दक्तित,
कजित, प्रताजड्त, अपमाजनत, ब्लैकमेल करने के
उद्देश्य से थाना सराय लखन्सी, िनपद मऊ में
आरोजपत अपराध पुजलस के द्वारा जलखवाई गई
है।

5. आवेदक के जवद्वान अजधवक्ता ने पुनः
अपना तकय प्रस्तुत करते हुऐ कहा। आवेदक पर
आरोजपत अपराध की प्राजथजमकी स्वतांत्र व
सारवान आरोप एवां तथाकजथत अपराध के
आधार पर नहीां जलखाई गई है अजपतु पुजलस
अजिलेख व पूवय में पांिीकृत आरोजपत अपराध
के आधार पर आधाररत करते हुए जलखी/जलखाई
गई है िो जवजध जवरूद्ध, स्वेच्छाचारी, अवैधाजनक
है। आवेदक पर आरोजपत अपराध के गैंग चाटय
में 4 वाद दजशयत है जिसमें आवेदक की िमानत
गुणागुण के आधार पर स्वीकार की िा चुकी है।
आवेदक पर आरोजपत अपराध के समथयन व
पुजि में आवेदक के जवरूद्ध अजियोिन के पास
कोई रांच मात्र जवजधक, ग्राह्य व जवश्वसनीय साक्षय
उपलब्ध नहीां है। आवेदक द्वारा लोक व्यवथथा