Balram Pandey vs State Of U.P.
2022 Latest Caselaw 3396 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 75
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 54106 of 2021
 

 
Applicant :- Balram Pandey
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Brijesh Kumar Yadav,Amit Misra,Ankit Kumar Sahu
 
Counsel for Opposite Party :- G.A.
 
With
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2375 of 2022
 

 
Applicant :- Devendra Singh Gahlaut
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Prashant Shukla
 
Counsel for Opposite Party :- G.A.
 
Hon'ble Chandra Kumar Rai,J. 

Heard Sri Viresh Mishra, learned Senior Advocate assisted by Sri Brijesh Yadav, learned counsel for the applicant in Bail Application No. 54106 of 2021 and Sri Prashant Shukla learned counsel for the applicant in Bail Application No.2375 of 2022, Sri B.P. Maurya, learned A.G.A. and perused the record.

The present bail applications have been filed on behalf of the applicants- Balram Pandey and Devendra Singh Gahlaut to release them on bail in Case Crime No. 0380 of 2021, under Section- 8/20 N.D.P.S. Act, Police Station- Sipari Bazar, District- Jhansi,during the trial.

The case of the prosecution in nutshell is that informer informed to informant that some persons are coming from Vishakhapatnam with DCM No.PB05Q9229 with contraband (Ganja) and going to Agra. On search, three persons were caught, namely, Shyamveer (driver of DCM), Balram Pandey and Devendra Singh Gahalaut (Helper of DCM) with DCM Truck and found 15 quintal 90 Kg. Ganja from DCM Truck. They further found 10 Kg. Ganja from co-accused- Ajay Kumar Shakya in another vehicle- Swift Car No.UP74AA3327. Investigating officer recovered 38 bori of alleged contraband (15 quintal 80 Kg.) from D.C.M. vehicle and two bundle of alleged contraband (10 Kg.) from swift car.

Learned counsel for the applicant- Balram Pandey submitted that the applicant was passenger in DCM vehicle and had no consent with aforesaid DCM vehicle as well as incident. He further submitted that false recovery has been setup against the applicant.

Learned counsel for the applicant- Devendra Singh Gahaluat submitted that applicant is only helper of aforesaid DCM vehicle and has no knowledge /concern about the alleged recovered contraband (Ganja). No recovery has taken place from the possession of the applicant.

Learned counsel for both the applicants submitted that out of 38 bori of alleged contraband, sample was taken from one bori and sent the same for examination to laboratories, but no chemical report has come. They further submitted that sampling from one bori is clear violation of standing instruction No. 1/88, 1/89 as well as circular dated 10.05.2007 and 16.01.2015. Further submission is that weight of 38 bori is separately mentioned in the first information report as well as in recovery memo, the weight of one bori, out of 38 bori is mentioned as 16.370 Kg. and the weights of other bori are mentioned as 42.680 kg., 41.700 kg., 36.900 kg. etc. It is next submitted that if the sample has been taken from bori having 16.370 kg. weight then the same is below commercial quantity and remaining 37 bori have not been sent for chemical examination as such, it is not established whether 37 bori contained contraband or not? They further submitted that there is non-compliance of mandatory provisions contained under Sections-42, 50 and 57 of N.D.P.S. Act.

Learned counsel for the applicant (Bal Ram Pandey) submitted that applicant has been falsely implicated in another Case Crime No.452 of 2019 under Section 8/29 N.D.P.S. Act, Police Station Koshi Kalan, District-Mathura, in which he was granted bail by this Court by order dated 31.10.2019. The applicant is in jail since 16.08.2021.

Leaned Counsel for the Applicant (Devendra Singh Gahalaut) submitted that the applicant has no criminal antecedent and applicant is in jail since 17.08.2021.

The counsel for applicants placed reliance upon standing instruction No.1/88, the relevant portion whereof reads as under:-

"(e) while drawing one sample in duplicate from a particular lot, it must be ensured that representative drug in equal quantity is taken from each package/container of that lot and mixed together to make a composition whole from which the samples are drawn for that lot?."

There is no evidence on record regarding taking of samples as provided in above referred standing instruction No.1/88 as such taking of proper samples is highly doubtful.

Learned counsel for the applicants further placed reliance upon the judgment and orders in support of their arguments with respect to procedure of sampling under N.D.P.S. Act.

(i) Gaunter Edwin Kirches vs. State of Goa (1993) 3 SCC 145

(ii) Raju Gurany and another vs. Union of India (2007) 4 ADJ 17

(iii) Jitendra Singh Rathore vs State of U.P. 2014 (2) ADJ 424

(iv) Smt. Sita Gati Magar vs. State of U.P. decided on 04.05.2018 in Jail Appeal No.4061 of 2014.

(v) Bail order dated 04.01.2022 passed in Criminal Misc. Bail Application No.55148 of 2021.

On the point of statutory force of Standing instruction, the learned counsel for the applicant further placed reliance upon following case:

(i) Noor Aga vs. State of Punjab (2008) 3 JIC 640 (S.C.)

On the other hand, leaned A.G.A. submitted that applicants along with others have been arrested along with huge quantity of Ganja (15 quantal 80 kg.). During search and seizure they have confessed their guilt and all the provisions of N.D.P.S. Act have been followed. He further submitted that counter affidavit has been filed in both the bail-applicants denying the allegations of bail applications filed by applicants.

He further submitted that in paragraph no.3 of the counter affidavit filed in Crl. Misc. Bail Application No.2375 of 2022. It is mentioned that F.S.L. report has been received and the same has been annexed as Annexure No.C.A.1 which proves that recovered contraband from two sample is Ganja. However, learned A.G.A. failed to establish that sampling was done according to standing instruction No.1/88 and 1/89 but finally submitted that applicants are not entitled to be released on bail.

In further reply to the argument of learned A.G.A. counsel for the applicants submitted that in para no.27 of the affidavit filed in support of the bail application no.54106 of 2021, it is specifically mentioned that out of 38 bori of alleged contraband, the sample was taken from one bori only but State has not denied specifically the aforementioned fact is para No.14 of their counter affidavit that they have taken sample from each bori and mixed them accordingly to standing instruction nos.1/88 and 1/89 as such applicants are entitled to be released on bail. It is further submitted that there is no possibility of tampering of any evidence and applicant will never misuse the liberty of bail and shall fully cooperate in the investigation.

The Court while considering the provisions of Section 37 of the N.D.P.S. Act finds that State was granted time to reply and the State has filed counter affidavit in both the cases which has been taken into consideration. So far as other conditions is concerned, it will be relevant to mention that the Apex Court in the case of Union of India vs. Shiv Shankar Keshari (2007) 7 SCC 798 as well as in Union of India Vs. Rattan Malik (2009) 2 SCC 624 has held that court while considering the bail application with reference to section-37 of the Act is not called upon the record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about existence of such grounds.

Considering the submissions of both the parties and keeping in mind the twin conditions of Section 37 of N.D.P.S. Act and perusing the evidence on the record, it is very much established that sampling was done contrary to the standing instruction No.1/88 which are mandatory in nature, as such chances of applicants conviction are weak on the basis of sampling of contraband done in the present matter as well as on the basis of the ratio of the judgment in the case of Union of India vs. Shiv Shankar Keshri (supra) as well as other judgment mentioned above larger mandate of Article 21 of the constitution of India without expressing any opinion on the merit of the case, I am of the view after applying section 37 of the N.D.P.S. act that the applicants are entitled to be released on bail.

Let the applicants- Balram Pandey and Devendra Singh Gahlaut involved in aforesaid case be released on bail on their furnishing a personal bonds and two heavy sureties each in the like amount to the satisfaction of the Court concerned with 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.

Order Date :- 19.5.2022

Rameez