Zahid vs Union Of India
2021 Latest Caselaw 6509 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 72
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14291 of 2021
 
Applicant :- Zahid
 
Opposite Party :- Union of India
 
Counsel for Applicant :- Salman Ahmad, Naseem Ahmad
 
Counsel for Opposite Party :- Ashish Pandey
 
Hon'ble Sanjay Kumar Singh,J.

1. Keeping in view the Pandemic (COVID-19), the case is taken up through video conferencing.

2. Heard learned counsel for the applicant and Mr. Ashish Pandey, learned Special Public Prosecutor (Narcotics) appearing on behalf of Union of India through video conferencing and perused the material placed on record.

3. By means of this application, the applicant, who is involved in Case Crime No. 04 of 2021, under sections 8/29/22 of Narcotic Drugs & Psychotropic Substances Act, police station N.C.B., district Lucknow, is seeking enlargement on bail during the pendency of trial.

4. In nutshell, the facts of this case are that on 17.01.2021 at about 13.00 O'clock Intelligence Officer of Narcotics Control Bureau received a confidential information from reliable sources that Avnish Singh @ Chhotu and Chandan Kumar Tiwari, residents of Jaunpur, hid the illegal stock of Phensedyl syrup in the go-down, which they will send to Bengal by two trucks. This information was conveyed by the Intelligence Officer to the Superintendent, N.C.B. Lucknow. Thereafter, a team consisting officers of N.C.B., Lucknow and S.T.F. Varanasi was formed to carry out the operation, which succeeded in apprehending the accused persons and two trucks bearing No. UP 53 BT 7304 and RJ 40 GA 0142. On interrogation, the apprehended accused persons disclosed their names as Zahid, Ameen Khan, Chandan Kumar, Jitendra Prajapati, Brijesh Singh and Jai Singh. The accused were served with the notice under section 50 of the Narcotics Drugs and Psychotropic Substances Act and were enlightened about their legal rights in terms of section 50 of N.D.P.S. Act to be searched before a Gazetted Officer or Magistrate. They were searched before Circle Officer, but no incriminating articles were recovered from their personal search. However, on the pointing out of accused Chandan Kumar from the dumper of truck bearing No. UP 73 BT 7304, ten cartons of Phensedyl syrup were recovered. Thereafter, on search of go-down, 610 packets of Abbott Company, in which Phensedyl syrup were kept, recovered. In one packet, 100 plastic bottles, on which Chlorpheniramine Maleate & Codeine Phosphate cough Linctus, Phensedyl @ New 100 ml, were printed, also recovered. The weight of bottle was 135 gms. On analysis the contents of the bottle, it was found that Codeine Phosphate was mixed, which comes within the ambit of Narcotics Drugs and Psychotropic Substances Act. The aforesaid recovered items were made by Abbott Health Care Pvt. Ltd., District Solan, Himachal Pradesh. The quantity of recovered items was 61000 bottles of 100 ml each. From truck No. UP 53 B.T. 7304, sack of rice and from truck No. RJ 40 GA 0142, plywood were also recovered. Recovery memo was prepared at the spot following required legal formalities. On the basis of aforesaid recovery memo, a case was registered against the accused persons at Case No. 4 of 21, under section 8/29/22 N.D.P.S. Act, police station N.C.B., district Lucknow.

5. Main substratum of argument of learned counsel for the applicant is that the applicant is driver of truck bearing No. RJ 40 GA 0142. The co-accused Ameen Khan, who is the cleaner of the said truck, has already been granted bail by co-ordinate Bench of this Court vide order 15.06.2021 in Criminal Misc. Bail Application No. 14601 of 2021, therefore the applicant is also entitled to be released on bail on the ground of parity. It is next submitted by the learned counsel for the applicant that there is no recovery from the possession of the applicant and he has been falsely implicated in this case.

6. Per contra, Mr. Ashish Pandey, learned Special Public Prosecutor appearing on behalf of opposite party-Union of India through Narcotics Control Bureau, Lucknow, vehemently opposed the aforesaid submission of learned counsel for applicant by contending that:

(i) All the six accused persons, who were involved in this case, were apprehended at the spot.

(ii) The applicant was having conscious possession of aforesaid recovery.

(iii) There is no enmity between officers of Narcotics Control Bureau and the S.T.F. with the applicant, therefore, allegation of false implication is without any basis and against the evidence on record.

(iv) The huge quantity of 61000 bottles of 100 ml each of Phensedyl syrup cannot be planted.

(v) The mandatory requirements as provided under the Narcotics Drugs & Psychotropic Substances Act have been followed by the officer concerned.

(vi) Illicit trafficking is a organized crime and are done adopting different modus operandi by a group of persons.

(vii) All the accused persons of this case were involved together in the illicit trafficking with their different role.

(viii) The place of seizure of the recovery is situated at Faizabad road near Public Inter College, Shahganj, district Jaunpur, which is not on the route of West Bengal.

(ix) The act of the applicant as well as co-accused comes under the purview of "illicit traffic" as defined in section 2 (viii b) (iii) & (iv) of the N.D.P.S. Act.

(x) In view of section 54 of the N.D.P.S. Act, presumption shall also be drawn against the applicant unless the contrary is proved.

(xi) At this stage, it cannot be said that applicant is not guilty of alleged offence.

(xii) So far as bail order dated 15.06.2021 of co-accused Ameen Khan is concerned, it is submitted by Mr. Pandey that contention on behalf of Narcotics Control Bureau/Union of India has neither been considered nor noted in the order dated 15.06.2021.

(xiii) Much emphasis has been given that order dated 15.06.2021 has been passed without considering the provisions of section 37 of Narcotics Drugs & Psychotropic Substances Act, therefore benefit of parity of such bail order cannot be extended to the applicant.

(xiv) Lastly, Mr. Ashish Pandey, learned Special Public Prosecutor submitted that the case is under investigation and he may be allowed some short time to file counter affidavit on behalf of Narcotics Control Bureau to bring on record the relevant material for proper adjudication.

7. After having heard the learned counsel for the parties, I find that the issue that arises for consideration before this Court is "as to whether the applicant is entitled to be released on bail only on the ground of parity of bail order dated 15.06.2021 of co-accused Ameen Khan".

8. The order dated 15.06.2021 passed in Criminal Misc. Bail Application No. 14601 of 2021 is being reproduced herein-below:

"Heard learned counsel for the applicant and Sri Ashish Pandey learned counsel for Union of India through N.C.B.

It has been contended by the learned counsel for the applicant that nothing has been recovered either from the possession of the applicant or from the truck no. RJ 40 GA 0142 but to the contrary the applicant is the cleaner of the aforesaid truck and he is going to Kolkata by the truck in which the plywood had been uploaded and the driver has a valid document relating with the goods and the truck but the applicant has been falsely implicated in the present case by the police, the said fact has been mentioned in para 13 to the affidavit filed in support of bail application. The applicant has no criminal history with respect to the N.D.P.S. Act. It has also been submitted that the applicant is languishing in jail since 18.01.2021. The applicant has no other reported criminal antecedent, the said fact has been mentioned in para 27 to the affidavit filed in support of bail application.

Learned A.G.A. opposed the prayer for bail.

Considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tampering of the witnesses and prima facie satisfaction of the Court in support of the charge and the applicant is entitled to be released on bail in this case.

Without expressing any opinion on the merits of the case let the applicant Ameen Khan involved in Case Crime No. 4/2021 under Section 8/29/22 N.D.P.S. Act, Police Station N.C.B, District Lucknow be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of magistrate/court concerned, with the following conditions:-

i) 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.

(ii) 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.

(iii) In case, the applicant misuses 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.

(iv) 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, the court below shall be at liberty to cancel the bail.

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

The computer generated copy of such order shall be self attested by the counsel of the party concerned.

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. There is no dispute that recovered and seized 61000 bottles of 100 ml each of Phensedyl syrup containing Codeine Phosphate, which finds place at serial No. 28 of the list of Narcotics Drugs & Psychotropic Substances appended to N.D.P.S. Act, are much more than the commercial quantity, therefore, provisions of section 37 of Narcotics Drugs & Psychotropic Substances Act are attracted in this case, which is in addition to section 439 of Cr.P.C. and mandatory in nature.

10. After perusing the aforesaid bail order dated 15.06.2021 of co-accused Ameen Khan, I find that neither any reason has been recorded nor provisions of section 37 of N.D.P.S. Act has been considered in the said order while granting bail to the co-accused Ameen Khan. It is well settled that recording of finding in terms of section 37 of N.D.P.S. Act is a sine qua non for granting bail.

11. In view of Section 37 of the N.D.P.S. Act, before granting bail for the offence under N.D.P.S. Act twin conditions as provided under Section 37(1)(b) (i) and (ii) have to be satisfied. Section 37 of the N.D.P.S. Act is quoted herein below:

"37. Offences to be cognizable and non-bailable. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."

On account to these two reasons as well as considering the principle laid down by the Apex Court in following resent judgments, the bail order dated 15.06.2021 is not binding upon this Court:

i. Sonu vs Sonu Yadav and another, reported in AIR 2021 SC 201; (paragraphs 11 and 12).

ii. Union of India vs Prateek Shukla, reported in AIR, 2021 SC 1509; (paragraphs 11 and 13).

iii. Narcotics Control Bureau vs Laxman Prasad Soni, etc, (Criminal Appeal No. 438-440 of 2021 decided on 19th April, 2021.

iv. Union of India Vs. Rattan Mallik @ Habul, reported in 2009 (1) SCC (Crl) 831 (paragraphs 13 and 14).

12. As such, in the light of dictum of aforesaid judgments of the Apex Court as well as the reasons mentioned in preceding paragraph No.10, the benefit of parity of order dated 15.06.2021 of co-accused Ameen Khan cannot be given to present applicant. Accordingly, the submission of learned counsel for the applicant for granting bail on the ground of parity of order dated 15.06.2021 is rejected.

13. In the opinion of this Court, each and every case depends on its own facts and a close similarity between one case and another is not enough, because even a single significant detail may alter entire aspect of the case.

14. In view of above, it would be appropriate to grant time to opposite party to file counter affidavit in the matter.

15. Let a counter affidavit be filed within four weeks. Two week's time is allowed to the learned counsel for the applicant to file rejoinder affidavit thereafter.

16. List this case on 05.08.2021 before the appropriate Bench for hearing of this case on merits.

Order Date :- 22.6.2021

Sazia