Asif vs Union Of India And Another
2023 Latest Caselaw 10219 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Order Reserved On:-29.03.2023
 
Order Delivered On:-07.04.2023
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 59755 of 2022
 

 
Applicant :- Asif
 
Opposite Party :- Union Of India And Another
 
Counsel for Applicant :- Istiyaq Ali,Ali Hasan
 
Counsel for Opposite Party :- A.S.G.I.,Krishna Agarawal
 

 
Hon'ble Siddharth,J.

1. Heard Sri Istiyaq Ali, learned counsel for applicant, Sri, Krishna Agarwal, learned counsel for opposite party and learned A.G.A. for the State and perused the record.

2. This bail application has been preferred by the accused-applicant, Asif, who is involved in Case Crime No. 02 of 2022, under Section - 8/21, 8/22 and 60III N.D.P.S. Act, Police Station- C.B.N, District- Bareilly.

3. There is allegation in the recovery-memo-cum FIR that, the team of Narcotics Control Bureau(NCB) on the basis of secret information intercepted a car wherein the applicant was found. During search a ladies purse was recovered from the car where from cash of Rs. 10.30 lacs and 230 gm of heroine in one packet, 500 gm of heroine in other packet and 5.900 kg of alprazolam was recovered. From all the three packets, two samples each of five grams were prepared and the remaining amount were packed in separate packets.

4. Learned counsel for the applicant has submitted that the recovered goods were taken to the office of Central Narcotics Bureau where the recovered contraband was weighed and samples were prepared when as per the guideline No. 01/1989, the entire exercise should have been done on the spot of recovery. He has relied upon the judgment of the Apex Court in the case of Union of India Vs. Mohan Lal (2016) 3 SCC and has submitted that the procedure has been violated. Hence, the applicant deserves to be enlarged on bail. The applicant has been falsely implicated in the present case. He has no criminal history. He is languishing in jail since 03.03.2022 and he undertakes that he will not misuse liberty, if granted.

5. Learned counsel for opposite party has vehemently opposed the prayer for bail and have submitted that the judgment in the case of Union of India Vs. Mohan Lal (Supra) applies to handling and disposal of Narcotics Drugs and Psychotropic Substances. He has upon a recent judgment of the Apex Court in the case of Union of India Vs. Ajay Kumar Singh @ Pappu, in Criminal Appeal No. -23 wherein the Apex Court has held that the High Court is required to record finding while granting bail to an accused regarding the compliance of under Section 37 of NDPS Act and that it has found reasonable grounds for believing that the accused is not guilty of the alleged offence and is not likely to commit the same in future. He has lastly, relied upon the judgment of the Apex Court in the case of Khet Singh Vs. Union of India reported in (2022) 4 SCC 380 wherein the Apex Court has held that mere violation of procedure will not necessarily vitiate the conviction of an accused.

6. After hearing the rival contentions, this Court finds that the applicant is the only accused in this case. Recovery of contraband has been made from his vehicle in the presence of two public witnesses. Although, there is violation of the procedure, but there is no justification given by the opposite party to justify the same on reasonable grounds at all required by the Apex Court in the case of Khet Singh Vs. Union of India (Supra). The judgement of Khet Singh Vs. Union of India (Supra) is on the appeal preferred by the accused. The stage of evidence of both the parties had passed in the aforesaid case. The accused as well as the opposite party had led their respective evidences before the court and thereafter, conviction was recorded after considerations of the entire evidence on record holding that although there is contravention of the instructions, but in the totality of the fact and circumstances of the case and the evidence on record, the Apex Court did not found it to be suitable case for interference with the judgment and order of conviction of the accused. In the present case, this is the first implication of the applicant and he has no criminal antecedents whatsoever except the present implication. The procedure provided in the guidelines of NCB has been clearly violated. In the pleadings in complaint/justification for violation of procedure has been pleaded.

7. However the Apex Court in the Case of Union of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798 has held that the court while considering the application for bail with reference to Section 37 of the Act is not called upon to 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 the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.

8. Considering the facts of the case and keeping in mind the arguments advanced on behalf of the parties, the ratio of the Apex Court's judgment in the case of Union of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798, larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/ State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail.

Let applicant be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions-

(i) 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;

(ii) In case, the applicant misuses the liberty of bail 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.

(iii) 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

9. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.

10. Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

11. The court below is directed to conclude the trial against the applicant, as expeditiously as possible, preferably within a period of one year from the date of production of certified copy of this order.

12. Registrar(Compliance) is directed to communicate this order to the concerned court below within a week.

Order Date:-07.04.2023

Abhishek