Surendra Rai vs State Of U.P.
2022 Latest Caselaw 20967 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 79
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41253 of 2022
 

 
Applicant :- Surendra Rai
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Rajesh Kumar Srivastava,Gaurav Srivastav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Subhash Vidyarthi,J.

1. Heard Sri Rajesh Kumar Srivastava and Sri Gaurav Srivastav, the learned counsel for the applicant, Sri Dinesh Kumar Srivastava, the learned Additional Government Advocate and perused the record.

2. The instant application has been filed seeking release of the applicant on bail in Case Crime No. 130 of 2022, under Sections 8/21, 23 (C) of The Narcotic Drugs and Psychotropic Substances Act, 1985 (herein after referred to as "NDPS Act"), Sections 471, 473 IPC, Police Station Kasya, District Kushinagar during pendency of the trial in the Court below.

3. The aforesaid case has been registered on the basis of an F.I.R. lodged by an Inspector of Police against five named accused persons, including the applicant, alleging that on the basis of information received from a Mukhbir, a Container Truck was intercepted, which was being driven by co-accused Rambabu Rajbhar and the applicant was sitting in the Cabin of the Truck. 321.600 k.g. ganja packed in 21 packet was recovered from the Truck and the F.I.R. mentions the weight of each of the packets, which varies between 9.4 k.g. to 20.1 k.g.

4. As per the F.I.R. averments, both the persons sitting in the Truck confessed that they used to transport ganja by the Truck for which they were paid money.

5. The F.I.R. further states that 50 gram of the substance recovered was taken out from each of the packets for being tested and thus, a sample weighing 1050 gram were prepared.

6. In the affidavit filed in support of the bail application, it has been stated that the applicant is innocent and he has been falsely implicated in the present case and that he has no criminal history.

7. The learned counsel for the applicant has submitted that as per the F.I.R. averments, sample have not been drawn from all the packets recovered and the samples have not been drawn in presence of a Magistrate.

8. The learned counsel for the applicant has relied upon a judgment of this Court passed in the case of Mohd. Asageer Vs. N.C.B. reported in 2022 SCC OnLine All 694.

9. Per contra, Sri Dinesh Kumar Srivastava, the learned Additional Government Advocate has vehemently opposed the prayer for grant of bail and he has submitted that the quantity of ganja recovered from the Truck is huge and the applicant being Cleaner of the Truck shall be presumed to be having conscious possession of the substance being carried in the Truck. It is further submitted that it is mentioned in the Case Diary, which has been produced for the Court's perusal, that the sample of the substance recovered was drawn before the Special Judge (NDPS Act), Kushinagar, and therefore, the provisions of Section 52-A of the NDPS Act have been complied with in the present case.

10. A perusal of the relevant extract of the Case Diary indicates that a single sample of 1.050 k.g. of the substance recovered had been sent to the Forensic Science Laboratory, Varanasi on 11.04.2022 but the Forensic Science Laboratory, Varanasi returned the same with an objection that the sample should weigh 24 gram only. Thereafter the sample of 1.050 k.g. was produced before the Additional Sessions Judge/Special Judge, NDPS Act, Kushinagar for taking out a sample of 50 gram whereupon the Special Judge passed an order "Be presented before the concerned Magistrate for the same under Section 52-A of the NDPS Act."

11. The Senior Sub Inspector of Police thereafter presented the sample before Additional Chief Judicial Magistrate, Kasya, Kushinagar whereupon the said Magistrate passed an order "Allowed. The Investigating Officer to act in accordance with law". Thereafter, the Investigating Officer took out 50 gram from the sample weighing 1.050 gram and sealed it and the Magistrate endorsed that he had seen it.

12. From the aforesaid narration of the facts recorded in the Case Diary, it appears that the Magistrate has not acted in compliance of the mandate of law provided under Section 52-A of the NDPS Act, which reads as under:-

"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) Where 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 or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence]."

13. The mandate of law under Section 52-A of the NDPS Act is that the psychotropic substance recovered shall be forwarded to the officer incharge 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 the details and make an application to the Magistrate for the purposes mentioned in the aforesaid sub section and where an application is made under sub Section (2), the Magistrate shall allow the application. After allowing such an application, the steps mentioned in sub Section (2) of Section 52-A of the NDPS Act are to certify the correctness of an inventory of the substance recovered, taking photographs of the substances in the presence of the Magistrate and certifying such photographs as true or allow to draw representative sample of the substance in presence of the Magistrate. The correctness of list of samples has not been certified in the present case by a Magistrate. The narration made in the Case Diary indicates that the Magistrate has passed a cryptic order that the Investigating Officer should act in accordance with law. There is no direction for making inventory, taking photographs etc. or drawing samples of the substance in presence of a Magistrate. The course adopted by the Magistrate in the present case does not appear to be in accordance with the mandate of the legislature contained in Section 52-A of the NDPS Act.

14. From the material placed before the Court, prima facie it appears that the entire substance recovered was not produced before the Magistrate and that the samples from all the packets recovered have not been drawn in presence of a Magistrate, which prima facie indicates a non compliance of the mandatory provisions of Section 52-A of the NDPS Act.

15. Keeping in view the aforesaid facts and without making any observations on the merits of the case, this Court is of the view that the aforesaid facts prima facie indicates that applicant may not be held guilty of the alleged offences against him. Moreover, the applicant has no criminal history and, therefore, there is no ground to believe that in case the applicant is released on bail, he would again indulge in committing similar offences.

16. Having regard to the aforesaid facts and submissions, I am of the view that the applicant is entitled to be released on bail.

17. In light of the preceding discussion and without making any observation on the merits of the case, the instant bail application is allowed.

18. Let the applicant Surendra Rai be released on bail in Case Crime No. 130 of 2022, under Sections 8/21, 23 (C) of The Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 471, 473 IPC, Police Station Kasya, District Kushinagar on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court below, subject to the following conditions:-

(i) The applicant will not tamper with the evidence during the trial.

(ii) The applicant will not influence any witness.

(iii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

(iv) The applicant shall not directly or indirectly make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court to any police officer or tamper with the evidence.

19. In case of breach of any of the above condition, the prosecution shall be at liberty to move an application before this Court seeking cancellation of the bail.

Order Date :- 14.12.2022

Jaswant