Rajesh @ Kooki vs State Of U.P.
2023 Latest Caselaw 20831 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:158552
 
Court No. - 75
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33348 of 2023
 

 
Applicant :- Rajesh @ Kooki
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Rajesh Kumar Bind,Sheshadri Trivedi,Sr. Advocate
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Pankaj Bhatia,J.

1. Heard Sri Satish Trived, Senior Advocate assisted by Sri Sheshadri Trivedi and Sri Rajesh Kumar Bind, learned counsel for the applicant, learned AGA and perused the record.

2. The FIR in question was lodged alleging that three persons were apprehended on a surprise check and allegedly 1kg and 50 grams of diazepam powder was allegedly recovered from the applicant. The counsel for the applicant argues that the recovery effected from the applicant was not in the presence of a Gazetted Officer or a Magistrate, thus there was a violation of Section 50 of the NDPS Act, as admittedly the search was conducted in person also. He further argues that the mandates of Section 51 NDPS Act read with Section 100 Cr.P.C. were also not followed as there are no independent witnesses to the search. He further argues that the sample has not been drawn in the presence of a Magistrate which is also in violation of Section 52 A of the NDPS Act. In support of the said, he places reliance on the judgment of the Supreme Court in the case of Simranjeet Singh vs. State of Punjab. The applicant is in custody since 20.06.2023. The applicant is entitled to be enlarged on bail.

3. The learned AGA opposes that bail application by arguing that mandate of Section 37 has to be considered prior to grant of bail as allegedly the recovery from the applicant is more than the commercial quantity. It is admitted at the bar that applicant has no criminal history.

4. Considering the said submission made at the bar, this Court had the occasion to deal with the submissions raised in the present case, in the case of Wahid Ali vs. NCB in Criminal Misc. Bail Application No.13590 of 2021 decided on 12.07.2023. This Court had noticed the law laid down by the Supreme Court in the case of MohdMuslim@ Hussain vs. State (NCT of Delhi); 2023 LiveLaw (SC) 260 wherein the Supreme Court had the occasion to deal with the scope of the phrase reasonable used in Section 37 of the NDPS Act and the Supreme Court laid in paragraph 18 to 20 as under:

?18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is ?not guilty of such offence? and that he is not likely to commit any offence while on bail. What is meant by ?not guilty? when all the evidence is not before the court? It can only be a prima facie determination. That places the court?s discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co-operating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws ? be balanced against the public interest.

19. A plain and literal interpretation of the conditions under Section 37 (i.e.,that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.

20. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused?s guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik19). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail.?

5. The counsel for the applicant also places reliance on the judgment of the Supreme Court in the case of Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra & Anr. (2005) 5 SCC 294 to argue that as the applicant has not criminal antecedents of offence under NDPS Act, the second part of Section 37 of the NDPS Act also stands satisfied in the present case.

6. Considering the submissions made at the bar, prima facie, even as per the detail of the FIR the mandate of Section 50 of NDPS Act has not been followed. The mandate of Section 51 of NDPS Act read with Section 100 Cr.P.C. has also not been followed and even the mandate of Section 52A of the NDPS Act has not been followed in the present case. On the said statutory conditions not being followed, I can form a reasonable view that the prosecution may not be able to establish the guilt, for which the applicant has been charged. The second condition of Section 37 of NDPS Act is also satisfied by this Court as the applicant has no criminal history and thus, a reasonable view can be formed that the applicant if enlarged on bail will not indulge in a similar offence. Thus, for all the reasons recorded above, the applicant who has no criminal antecedents of an offence under NDPS Act is in custody since 20.06.2023 and there is nothing on record to demonstrate that the applicant if enlarged on bail, would in any way adversely affect the trial and without expressing any opinion on merit, I am of the view that the applicant is entitled to be released on bail.

7. Accordingly, the bail application is allowed.

8. Let the applicant- Rajesh @ Kooki be released on bail in FIR/ Case Crime No. 199 of 2023, under Section 21/22 of NDPS Act, 1985, Police Station- Hathras Gate, District- Hathras on his furnishing personal bonds and two reliable sureties of the like amount each to the satisfaction of the 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 :- 7.8.2023

Kalp Nath Singh