Sandeep vs State Of Up Thro Principal ...
2023 Latest Caselaw 20503 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:155166
 
Court No. - 75
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32915 of 2023
 

 
Applicant :- Sandeep
 
Opposite Party :- State Of Up Thro Principal Secretary Home Gov Of Up
 
Counsel for Applicant :- Ajendra Kumar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Pankaj Bhatia,J.

1. Heard learned counsel for the applicant, learned AGA and perused the record.

2. The FIR in question was lodged alleging that on a search carried out from the applicant, who was sitting alongwith two co-accused, 570 gm of Diazepam powder was allegedly recovered from a seat where the applicant was sitting.

3. Learned counsel for the applicant argues that even as per the FIR, there was no compliance of the mandate of Section 50, Section 51 of NDPS Act read with Section 100 Cr.P.C., search was not done in the presence of any Gazetted Officer or Magistrate or in the presence of any independent witness, thus, the recovery itself is suspect. He further argues that the alleged recovery was from a seat adjacent to where the applicant was sitting and thus, there is nothing on record to demonstrate 'conscious possession' of the applicant. He places reliance on the judgment of the Supreme Court in the case of Mohd Muslim @ Hussain v. State (NCT of Delhi); 2023 LiveLaw (SC) 260 to argue that when there is a violation of Section 50, Section 51 of NDPS Act and Section 100 Cr.P.C., prima-facie, the possession becomes suspect and the prosecution may not be able to establish the guilt of the applicant in trial. He further argues that the applicant has no criminal history and is in custody since 17.06.2023.

4. Learned AGA has opposed the bail application.

5. Considering the submissions made and recorded above, prima-facie, the mandate of Chapter V of the NDPS Act has not been followed, there are no independent witnesses to the recovery and the recovery has not been effected in the presence of Gazetted Officer; even sampling has not been done in the presence of Magistrate which is required under Section 52A of NDPS Act, thus, I can form a prima-facie view that that the prosecution may not be able to establish the guilt. As the applicant has no criminal history, the second of the twin conditions also stands satisfied. As such, the applicant is entitled to be enlarged on bail. In view thereof, the application is allowed.

6. Let the applicant Sandeep be released on bail in FIR No.330 of 2023, under Section 21/22 of NDPS Act, P.S. Souron, District Kasganj, on his furnishing a personal bond with two sureties of the like amount each to the satisfaction of court concerned with the following conditions:

(a) The applicant shall execute a bond to undertake to attend the hearings;

(b) The applicant shall not commit any offence similar to the offence of which he is accused or suspected of the commission; and

(c) The applicant shall not directly or indirectly make any 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 or to any police officer or tamper with the evidence.

Order Date :- 3.8.2023

nishant