Allahabad High Court
Kanha Alias Ravindra vs State Of U.P. on 15 December, 2022
Bench: Subhash Vidyarthi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49135 of 2022
Applicant :- Kanha Alias Ravindra
Opposite Party :- State of U.P.
Counsel for Applicant :- Hari Krishna Singh,Dhirendra Kumar Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Subhash Vidyarthi,J.
1. Heard Sri Dhirendra Kumar Srivastava, the learned counsel for the applicant, Sri Arun Kumar Pandey, 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. 935 of 2022, under Sections 21/22 of The Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station Highway, District Mathura 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 a Sub Inspector of Police alleging that the applicant was apprehended on the basis of suspicion when the informant was involved in regular patrolling and during his personal search 450 gram brown coloured powder kept in a polythene bag being carried in his hand was recovered and it is alleged that the applicant confessed that the substance recovered from him was Alprazolam powder. As per the F.I.R. averments 100 gram powder was taken apart as a sample and it was sent for being tested.
4. 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.
5. The learned counsel for the applicant has relied upon the judgment of Hon'ble Supreme Court in the case of Tofan Singh Vs. State of Tamil Nadu, (2013) 16 SCC 31 and he has submitted that the applicant has been implicated primarily on the basis of his confession that the substance being carried by him was Alprazolam.
6. The applicant is languishing in jail since 31.08.2022.
7. Per contra, the learned Additional Government Advocate has vehemently opposed the prayer for grant of bail. On the basis of instructions, he has submitted that in forensic analysis of the substance recovered, it has tested positive for Alprazolam and, therefore, the applicant's implication is not based solely on his confessional statement as it stands corroborated by the test report submitted by the Forensic Science Laboratory.
8. Having considered the aforesaid facts and circumstances as well as the submissions made by the learned counsel for the parties, what prima facie appears from the narration made in the F.I.R. itself is that although the substance has been recovered during the personal search of the applicant, the search has not been carried out in presence of a Gazetted Officer. Moreover, the samples of the substance has not been drawn in presence of a Magistrate and the procedure laid down for drawing of samples under Section 52-A of the NDPS Act, Standing Order No. 1 of 1989 issued by the Central Government and the guidelines laid down by the Hon'ble Supreme Court in the case of Union of India Vs. Mohanlal reported in (2016) 3 SCC 379 have not been followed in the present case.
9. In view of the aforesaid facts, coupled with the fact that the applicant has no criminal history, I am of the view that the applicant is entitled to be released on bail.
10. In light of the preceding discussion and without making any observation on the merits of the case, the instant bail application is allowed.
11. Let the applicant Kanha Alias Ravindra be released on bail in Case Crime No. 935 of 2022, under Sections 21/22 of The Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station Highway, District Mathura 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.
12. 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 :- 15.12.2022
Jaswant
