Allahabad High Court
Mahendra Pal vs State Of U.P. on 29 November, 2022
Bench: Subhash Vidyarthi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32255 of 2022
Applicant :- Mahendra Pal
Opposite Party :- State of U.P.
Counsel for Applicant :- Ali Hasan,Istiyaq Ali
Counsel for Opposite Party :- G.A.
Hon'ble Subhash Vidyarthi,J.
1. Heard Sri Istiyaq Ali, the learned counsel for the applicant, Sri Dinesh Kumar Srivastava, the learned Additional Government Advocate and perused the record.
2. Rejoinder affidavit filed today is taken on record.
3. The instant application has been filed seeking release of the applicant on bail in Case Crime No. 160 of 2022, under Sections 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station Sirauli, District Bareilly during pendency of the trial in the Court below.
4. The aforesaid case has been registered on the basis of an F.I.R. lodged by a Sub Inspector of Police alleging that during routine checking being made on 18.04.2022, four men and a woman were apprehended and different quantities of opium were recovered from all of them.
5. As per the F.I.R. averments 2.750 k.g. opium was recovered from the bag being carried by the applicant in his hand.
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.
7. The State has filed a counter affidavit opposing the prayer for grant of bail to the applicant and it has been stated that the applicant has criminal history of nine cases, including the present case.
8. A rejoinder affidavit has been filed on behalf of the applicant explaining his criminal history.
9. The learned counsel for the applicant has submitted that in four of the cases, the applicant has already been acquitted and in the remaining four cases, he is on bail. He has submitted that even as per the F.I.R. averments, the procedure prescribed for taking samples under Section 52-A of the N.D.P.S. Act has not been followed in the present case. He has placed reliance on the decision of the Supreme Court in the case of Union of India Vs. Mohanlal reported in (2016) 3 SCC 379 wherein the Hon'ble Supreme Court has held that the procedure prescribed under Section 52-A of the N.D.P.S. Act is mandatory. He has further submitted that the guidelines in Paragraph No. 20 of the aforesaid judgment have also not been followed in the present case.
10. The learned counsel for the applicant has further submitted that the Standing Order No. 1 of 1989 issued by the Central Government lays down the procedure for collection of samples and it inter-alia provides the minimum quantity required to be taken out as sample of opium is 24 gram whereas the F.I.R. shows that 20 gram of the substance recovered is sent for being tested.
11. The applicant is languishing in jail since 20.04.2022.
12. I have considered the aforesaid facts and circumstances of the aforesaid case 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 a sample of mere 20 gram has been drawn for being tested; the sample has not been drawn in presence of a Magistrate; no inventory of the substance recovered has been prepared and photographs etc. has not been taken in presence of a Magistrate. Moreover, although the seizure was made on 18.04.2022 but till date the test report of the substance recovered is not available.
13. Prima facie there is no reasonable ground to believe at this stage that the applicant may be held guilty of the alleged offences because of the aforesaid shortcomings.
14. Keeping in view the aforesaid discussions, I am of the view that the applicant is entitled to be released on bail.
15. In light of the preceding discussion and without making any observation on the merits of the case, the instant bail application is allowed.
16. Let the applicant Mahendra Pal be released on bail in Case Crime No. 160 of 2022, under Sections 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station Sirauli, District Bareilly 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.
17. 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 :- 29.11.2022
Jaswant
