Allahabad High Court
Shahjad Alias Sonu vs State Of U.P. on 20 December, 2022
Bench: Gajendra Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 92
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46352 of 2022
Applicant :- Shahjad Alias Sonu
Opposite Party :- State of U.P.
Counsel for Applicant :- Sikandar Khan,Ashish Kumar Pandey,Nandini Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Gajendra Kumar,J.
Heard learned counsel for the applicant, learned Additional Government Advocate for the State and perused the record.
The instant application has been filed seeking release of the applicant on bail in Case Crime No.466 of 2022, under Sections 8B/20 of The Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station Dadari, District Gautam Budh Nagar, during pendency of the trial in the Court below.
As per the prosecution story, on an information received from mukhbir khas that near Palla Nahar in the godown of Shahzad @ Sonu Kabadi, some suspected persons are transferring the goods in Swift Car from Eicher Canter, which might be stolen goods, police has arrested two accused persons along with the applicant, while two accused persons fled away from the spot. During search, 210 Kgs. Ganja (total 21 packets) has been recovered by the police.
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. It is further submitted that there is no possibility of the applicant tampering with any evidence. It is also submitted that the applicant will not misuse the liberty of bail and he will fully co-operate in the investigation.
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 recovery of Ganja.
The applicant is languishing in jail since 16.09.2022.
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 Ganja 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.
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 search from the vehicle, of which the applicant is neither the driver, owner nor sitting in the said vehicle, the search has not been carried out in presence of a Gazetted Officer. Further, it appears that no recovery of the alleged Ganja, lying in the godown since before, has been made from the alleged godown. 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.
Section 52-A of the Narcotic Drugs and Psychotropic Substances Act provides as follows:-
"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."
From the aforesaid discussion, prima facie, it appears that the mandatory provisions of law regarding seizure and collection of samples have not been followed in the present case, which may result in the prosecution being vitiated. For this reason, it appears at this stage that the applicant may not be held guilty of the offences alleged.
In light of the preceding discussion and without making any observation on the merits of the case, the instant bail application is allowed.
Let the applicant- Shahjad Alias Sonu be released on bail in Case Crime No.466 of 2022, under Sections 8B/20 of The Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station- Dadari, District- Gautam Budh Nagar 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 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.
Any violation of above conditions will be treated misuse of bail and learned Court below will be at liberty to pass appropriate order in the matter regarding cancellation of bail.
Order Date :- 20.12.2022
SK Goswami
