Allahabad High Court
Prem Paodel vs Govt. Of India Thru. N.C.B. Lko. on 6 May, 2022
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 28
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1409 of 2018
Applicant :- Prem Paodel
Opposite Party :- Govt. Of India Thru. N.C.B. Lko.
Counsel for Applicant :- Afzal Hasan,Dinesh Kumar Shukla,Piyush Kumar Singh,Shailendra Kumar
Counsel for Opposite Party :- Shikha Sinha,Akhilesh Kumar Awasthi`
Hon'ble Krishan Pahal,J.
Heard Mr. Piyush Kumar Singh, learned counsel for the applicant and Mr. Akhilesh Kumar Awasthi, learned counsel for the N.C.B. and also perused the material placed on record.
Applicant seeks bail in Case No. 12 of 2017, U/S 8/18/23/29 of The Narcotic Drugs And Psychotropic Substances Act, 1985, Police Station- Rupaidiha District - Bahraich, during the pendency of trial.
As per prosecution story, all 15 packets of opium were recovered from the possession of the applicant and co-accused Sita Nepali and 8 packets of opium are stated to have been recovered from the possession of the applicant only and the same was drawn from each packet in the presence of Magistrate.
Learned counsel for the applicant has argued that the applicant is absolutely innocent and has been falsely implicated in the present case. He further stated that in the present case, the applicant was coming on his foot from the side of Nepal's border and to do some labour work, the applicant and the co-accused has been falsely implicated by the department to show good work. He further stated that the Standing Order No. 1 of 88 of the N.C.B. has also not been followed in collecting the sample of the contraband article. Learned counsel for the applicant has placed reliance on the judgment of the Supreme Court in the case of Gaunter Edwin Kircher Vs. State of Goa, Secretariat Panaji, Goa reported in (1993) 3 Supreme Court Cases 145 wherein it has been opined that the sample from each packet has to be drawn in compliance of the said Standing Order No. 1 of 1988. Learned counsel for the applicant has also placed reliance on the case law of Arif Khan @ Agha Khan v. State of Uttarakhand (2018) 18 SCC 380, in which the Apex Court held that Section 50 of the NDPS Act mandatorily required search of the suspect/accused to be carried out in the presence of a magistrate or Gazetted officer, even if such a suspect/accused had waived the right to be taken to a magistrate or Gazetted Officer. In the present case, Section 50 of the NDPS Act has not been complied with. Learned counsel for the applicant has placed reliance on the judgment of the Supreme Court in the case of Mohan Lal vs. State of Punjab, (2018) SCC Online SC 947. Learned counsel for the applicant has further stated that he is languishing in jail since more than four and a half years. There is no likelihood of applicant's absconding during the trial, hence he is entitled to be released on bail.
Per contra, Mr. Akhilesh Kumar Awasthi, learned counsel appearing for the N.C.B. has opposed the bail application on the ground that there is compliance of Section 42 and 50 of N.D.P.S. Act. and that there was gazetted officer at the time of the search from the applicant. He further stated that two witnesses have been examined and the case is fixed for cross-examination of P.W.2. He further stated that the applicant was apprehended on 1.7.2017 and was formally arrested on 2.7.2017. The sample was drawn in the presence of the Magistrate and was sent to CRCR on 3.7.2017. The report was promptly prepared on 18.7.2017 which indicates that the said contraband is opium. He further stated that the applicant is a citizen of Nepal and there is every likelihood of absconding him during the trial.
In the case of State vs. Syed Amir Hasnain, (2002) 10 SCC 88, the Hon'ble Supreme Court has held, "In view of the two judgments of this Court in Union of India vs. Ram Samujh (1999) 9 SCC 382 and Union of India vs. Aharwa Deen, (2000) 9 SCC 382, even the High Court would be bound by the provisions of Section 37 of the NDPS Act and would not be entitled to release the accused under the provisions of the NDPS Act unless the provisions of Section 37 are satisfied".
In the case of Megh Singh vs. State of Punjab, 2004 (1) CCSC 337, the Hon'ble Supreme Court held that a bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag, or premises.
The submission of the learned counsel for the applicant is that the provision of Section 57 of the Act, 1985 was not complied with. In Babubhai Odhavji Patel Vs. State of Gujrat, (2005) 8 SCC 725, the Supreme Court has held that Section 57 of the Act, 1985 is not mandatory but it is only directory.
The accusation in the present case is with regard to the commercial quantity. Once the public prosecutor opposes the application for bail to a person accused of the enumerated offences, in case, the Court proposes to grant bail to such a person, two conditions are to be mandatorily satisfied in addition to the normal requirements under the provisions of the Code of Criminal Procedure, 1973 or any other enactment, (i) the Court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence. In State of Kerala Vs. Rajesh and others AIR 2020 SC, the Hon'ble Supreme Court has held that the expression "reasonable grounds" means something more than prima facie grounds, and (ii) that person is not likely to commit any offence while on bail. The non-obstante clause with which this Section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail. To check the menace of dangers drugs and psychotropic substances flooding the market, the Parliament has provided that the person accused of the offences under the Act should not be released on bail during the trial unless the mandatory conditions provided under Section 37 of the Act, 1985 are satisfied. This mandate of the legislature which is required to be followed.
Considering the facts and circumstances of the case, the nature of offence, recovery of heavy contraband, complicity of accused, the stage of the trial as well as the rival submissions advanced by the learned counsel for the parties and without expressing any opinion on the merits of the case, I am not inclined to release the applicant on bail.
Accordingly, the bail application of the applicant is rejected.
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.
However, it is directed that every endeavor shall be made by the trial court to conclude the trial expeditiously, if there is no other legal impediment, within a period of one year from the date of production of a certified copy of this order.
Order Date :- 6.5.2022
SA
