Lallan Kumar vs U.O.I. Through Intelligence ...
2022 Latest Caselaw 504 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Court No. - 28
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3058 of 2021
 

 
Applicant :- Lallan Kumar
 
Opposite Party :- U.O.I. Through Intelligence Officer N.C.B. Lucknow
 
Counsel for Applicant :- Devendra Pratap,Rajeev Kumar Srivastava
 
Counsel for Opposite Party :- Shikha Sinha,Akhilesh Kumar Awasthi
 

 
Hon'ble Krishan Pahal,J.

1. Heard Sri Rajeev Kumar Srivastava, learned counsel for applicant and Sri Akhilesh Kumar Awasthi, learned counsel for N.C.B. and perused the record.

2. Applicant seeks bail in N.C.B. Lucknow Crime No. 27/2020, U/S 8/18/29 N.D.P.S. Act, N.C.B. Lucknow, Place of Seizure Bilgram, near Police Station Bilgram, District Hardoi, during the pendency of trial.

3. As per prosecution story, on 18.9.2020 at about 8.00 am, intelligence officer received a secret information from the N.C.B. Force that two persons namely, Yusuf Khan S/o Kale Khan and Lallan Kumar S/o Bahadur Sav by Bolero no. UK 06 Q 8283  are carrying about 10 kg opium concealed in a cavity made near diesel tank. The said Bolero car is said to have started from Latehar, Jharkhand on 17.9.2020 after taking the said opium from one Lallan Yadav. The said opium was destined to reach one Ram Maurya at Faizullapur, Bareilly. The said information was recorded and was sent to the Superintendent of N.C.B., Harish Kumar through mobile. Harish Kumar, Superintendent, formed an Enforcement team and they proceeded towards the suspected place of recovery and reached there at 7.30 pm. Police personnel were also taken from the local police station i.e. Bilgram, District Hardoi.The independent witness, Mukesh Kumar s/o Surendra Singh was also taken with the team. The said Bolero jeep no. UK 06 Q 8283 was intercepted at 8.30 pm and two persons were found in it. The said Bolero was found being driven by Yusuf Khan and the person seated on the co-driver seat was the applicant Lallan Kumar. The arrested persons were informed about the secret input pertaining to contraband in the Bolero and in compliance of Section 50 of the N.D.P.S. Act, the search was conducted in the presence of Circle Officer, Vishal Yadav, Deputy Superintendent of Police, Bilgram. The co-accused person, Yusuf Khan is said to have opened the secret cavity by unscrewing the nuts near the diesel tank. In all, nine polythene bags were recovered from the said cavity. Smell of opium was coming from the said packets. All these packets were tested by the Drug Test Kit and was found to be opium. The packets were marked P1 to P9 and the total weight of opium was found to be 10.40 kg. The said contraband and the vehicle were confiscated.

4. Learned counsel for applicant has stated that he is the resident of Jharkhand and does labour work and lives in Bareilly. He had come to Kanpur and was arrested with co-accused Yusuf Khan. It is further stated that the N.C.B. team had reached his house at Jharkhand and nothing has been recovered from his house. Learned counsel has further stated that the team has taken a time of more than 10 hours in reaching the place of recovery as the team had started from their office at 9.00 am and reached the place of recovery at 7.30 pm. There is no independent witness to the said recovery. Learned counsel has further stated that there are no criminal antecedents of the applicant and nothing incriminating has been recovered from the possession of applicant on his personal search. As per the C.D.R. report, there is nothing to suggest that he used to talk to co-accused person Yusuf Khan.

5. Learned counsel has relied on the case law of this Court in Guddu Kumar Gupta vs. State of U.P.1 wherein it has been stated that N.C.B., New Delhi had issued Standing Instructions No. 1/88, wherein the standard procedure to be followed in the matters of recovery of contraband substances and taking of their samples has been provided. Learned counsel has also relied on Chinku Gupta vs. State of U.P.2, and State of Rajasthan vs. Jagraj Singh alias Hansa3, wherein the accused were acquitted on the ground of non-compliance of Section 42(1) of the NDPS Act.

6. Learned counsel for N.C.B., Sri Akhilesh Kumar Awasthi has vehemently opposed the bail application on the ground that the heavy amount of contraband has been recovered and the applicant belongs to Jharkhand and there is nothing on record to suggest that the officials of N.C.B. had any animosity with him. The applicant and the co-accused person, Yusuf Khan had knowledge of the said contraband being in the cavity especially created to carry the contraband. Thus, the applicant and co-accused persons were having conscious possession of the contraband. The said recovery has been made from their joint conscious possession. Learned counsel has further stated that the provisions of Section 50 of the N.D.P.S. Act and the Standing Order No. 1/88 of the N.C.B. has also been complied with.

7. Learned counsel has further stated that the case law referred to by learned counsel for applicant are not applicable to the present subject matter at this point of time, adjudication is for the purpose of bail only and we are not dealing with the order of conviction or acquittal. The recovered contraband is commercial in quantity. The accused persons are the residents of Jharkhand and there is nothing on record to suggest that they have been falsely implicated by the N.C.B. and there is nothing on record to suggest as to what animosity the N.C.B. had with the applicant and the another accused person. The applicant is a resident of Jharkhand and so is the another co-accused person. There is no reason for their false implication, that too regarding a recovery of this magnitude.

8. Learned counsel for N.C.B. has placed reliance on the following judgments :-

1. Than Kunwar vs. State of Haryana4

2. Ramesh Rana vs. State of U.P. 5

3. Union of India Through N.C.B. vs. Md. Nawaz Khan6

4. Union of India vs. Mohanlal and another7

5. State of Kerala vs. Rajesh8

6. State of Punjab vs. Baljinder Singh9

7. Sumit Tomar vs. State of Punjab10

8. Union of India vs. Ram Samujh And another11

9. Satpal Singh vs. State of Punjab12

10. Khet Singh vs. Union of India13

11. Dehal Singh vs. State of H.P.14

9. It is also provided in Section 52(1) of NDPS Act, wherein it is provided that the sample from the contraband should be taken before a Magistrate. The sample in the present case has been taken before the concerned Magistrate and the same has been settled. The taking of the sample before a Magistrate rules out any kind of adulteration or interpolation in the collection of the sample.

10. The relevant portions of the judgment rendered by the Apex Court in Union of India vs. Mohanlal and another15 are as follows :-

"12. Section 52A as amended by Act 16 of 2014, deals with disposal of seized drugs and psychotropic substances. It reads:

Section 52A: Disposal of seized narcotic drugs and psychotropic substances.

(1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may from time to time, determine after following the procedure hereinafter specified.

(2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered Under Section 53, the officer referred to in Sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in Sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of-

(a) certifying the correctness of the inventory so prepared; or

(b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or

(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

(3) When an application is made Under Sub-section (2), the Magistrate shall, as soon as may be, allow the application.

(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn Under Sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.]

13. It is manifest from Section 52A(2)(c) (supra) that upon seizure of the contraband the same has to be forwarded either to the officer in-charge of the nearest police station or to the officer empowered Under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory (b) certifying photographs of such drugs or substances taken before the Magistrate as true and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer in charge of the Police Station or the officer empowered, the officer concerned is in law duty bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with Sub-section (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure. Be that as it may, a conflict between the statutory provision governing taking of samples and the standing order issued by the Central Government is evident when the two are placed in juxtaposition. There is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the authorities concerned instead of helping them in the discharge of their duties. The Central Government would, therefore, do well, to re-examine the matter and take suitable steps in the above direction."

11. The recovered contraband is heavy in quantity. There is compliance of the mandatory provision of N.D.P.S. Act. The presence of applicant far away from his usual place of residence further casts shadow on his defence. The sample has been taken before the concerned Magistrate, which negates the theory of any kind of adulteration. There is nothing on record to suggest that there is any animosity of the accused to the officials of the N.C.B. The Standing Order No. 1/88 has been complied with.

12. Considering the facts and circumstances of the case, submissions advanced by learned counsel for the parties, nature of offence, evidence on record, pending investigation and considering the complicity of accused, severity of punishment, at this stage, without commenting any opinion on the merits of the case, this Court is not inclined to release the applicant on bail.

13. The bail application is, accordingly, rejected.

14. However, it is directed that the court below may proceed with the trial and reach at the logical conclusion expeditiously, if there is no legal impediment, within a period of one year from the date of production of a certified copy of this order.

15. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial.

Order Date :- 6.4.2022

Shalini