HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 73

Case :- CRIMINAL MISC. BAIL APPLICATION No. – 55408 of 2019

Applicant :- Kanhaiya Gupta

Opposite Party :- State of U.P.

Counsel for Applicant :- Brij Bhushan Pandey

Counsel for Opposite Party :- G.A.

Hon’ble Sanjay Kumar Singh,J.

Supplementary affidavit dated 06.12.2019 filed today on behalf of applicant is taken on record.

Heard Mr. V.P. Srivastava, learned Senior Advocate assisted by Mr. Brij Bhushan Pandey, learned counsel for the applicant, learned Additional Government Advocate representing the State and perused the record of the case.

By means of this application, the applicant Kanhaiya Gupta, who is involved in Case Crime No. 145 of 2019, under Sectionsection 409 IPC, police station Mohammadabad, district Ghazipur, is seeking enlargement on bail during the trial.

It is submitted by Mr. V.P. Srivastava, learned Senior Advocate that for the financial year 2018-19 paddy was purchased by the Government from different paddy purchase centre, and thereafter, same was handed over to the applicant, who is miller for hulling the said paddy and provide customed rice as per percentage prescribed by the Government for the year 2018-19. It is further submitted that main allegation against the applicant is that though he has received paddy from the Government for hulling, but did not return the same in prescribed percentage to the Government, as a result thereof liability of recovery of an amount of Rs. 4,90,18,455.15/- (rupees four crore ninety lac eighteen thousand four hundred fifty five and paise fifteen only) has been imposed by the Government upon the applicant. It is further pointed out that the said recovery proceedings initiated against the applicant was challenged by the applicant in Writ C No. 39068 of 2019, in which Division Bench of this Court vide order dated 29.11.2019, stayed the recovery proceedings against the applicant, photostat copy of said order dated 29.11.2019 has been brought on record by the applicant by means of supplementary affidavit dated 06.12.2019, appending the same as annexure SA-3. It is also submitted that it is admitted fact on record in the order dated 17.12.2019 issued by the office of District Food Marketing Inspector, Ghazipur that the applicant is a private miller and his mill was attached by order dated 15.12.2018 of the District Magistrate along with twenty two private millers for hulling of paddy, therefore, the applicant being a private miller cannot be said to be a public servant or agent of the Government. Therefore, the basic ingredients to constitute offence under Sectionsection 409 IPC is lacking in this case and only it can be said that it is a case under Sectionsection 406 IPC, for which maximum punishment provided under the Act is upto three years. It is also pointed out that the applicant has no criminal antecedent to his credit and is languishing in jail since 13.09.2019. It is next contended that there is no chance of the applicant of fleeing away from the judicial process or tampering with the prosecution evidence. Learned counsel for the applicant lastly submitted that if the applicant is released on bail, he will not misuse the liberty of bail and will cooperate in the early disposal of the case.

Per contra, learned Additional Government Advocate has vehemently opposed the bail prayer of the applicant by contending that though the applicant is running a private rice mill, but he will come under th purview of agent because of attachment of his rice mill with the Government for the purpose of hulling the paddy, but does not dispute that order of recovery issued against the applicant has already been stayed by the Division Bench of this Court vide order dated 29.11.2019.

Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, I am of the view that the applicant has made out a fit case for bail. Hence, the bail application is hereby allowed.

Let the applicant Kanhaiya Gupta, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

(iii) The applicant will not indulge in any unlawful activities.

(iv) The applicant will not misuse the liberty of bail in any manner whatsoever.

The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.

It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. It is further clarified that the trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.

Order Date :- 13.12.2019

Sazia