Kailash Yadav vs State Of U.P.
2023 Latest Caselaw 21075 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


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Neutral Citation No. - 2023:AHC:159686
 

 
Court No. - 75
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34598 of 2023
 

 
Applicant :- Kailash Yadav
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Awadhesh Kumar Malviya
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Pankaj Bhatia,J.

1. Heard learned counsel for the applicant as well as learned A.G.A. and perused the record.

2. The FIR in question was lodged alleging that on a search carried out, allegedly 325 grams of heroin was recovered from the possession of the applicant and based upon the said, the applicant was apprehended.

3. The submission of the Counsel for the applicant is that prior to the offence in question with regard to the missing of the daughter of the applicant, he had lodged an FIR, against which, at the instance of the Chief Minister's office, proceedings were initiated against the police personnel and as a sequel to the same, the present FIR in question was lodged. He further argues that admittedly the search had not carried out in the presence of Gazetted Officer or in the presence of any independent witness. He further argues that the sample was sent for chemical analysis after one month of the alleged recovery, which is in violation of the notification issued by the Central Government. He further argues that drawing of sample is not in the presence of Magistrate, thus, the mandate of Section 52A of the NDPS Act stands violated.

4. The Counsel for the applicant further argues that the applicant has no criminal antecedents and has been falsely implicated in the offence in question. He also argues that the co-accused with the recovery of 225 grams of heroin has been enlarged on bail by this Court vide order dated 03.08.2023, although, he does not claim the parity of the alleged recovery which is less than the recovery made from the applicant.

5. Learned A.G.A. vehemently opposed the bail prayer by arguing that the recovery is more than the commercial quantity, as such, the condition laid down under Section 37 of the NDPS Act has to be followed and the bail application should be rejected.

6. Considering the submissions made at the bar and on plain reading of the FIR, it is clear that the recovery is not in the presence of Gazetted Officer or Magistrate, which is contrary to the mandate of Section 50 of the NDPS Act; the recovery is also not witnessed by independent witnesses which is contrary to the mandate of Section 51 of the NDPS Act read with Section 100 of Cr.P.C. and the sample has not been done in the presence of a Magistrate which, prima facie, violates the Section 52A of the NDPS Act. The first of the twin condition prescribed under Section 37 of the NDPS Act, prima facie, stands satisfied in view of the law laid down by the Hon'ble Supreme Court in the case of MohdMuslim@ Hussain vs State (NCT of Delhi); 2023 LiveLaw (SC) 260, which is 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. 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 Malik; (2009) 2 SCC 624). 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."

7. As the mandate of Section 50 of the NDPS Act has not been followed, the prosecution may not establish the guilty of the applicant. As regards the second twin condition, as the applicant has no criminal antecedents, as such, in view of the law laid down by the Hon'ble Supreme Court in the case of Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra & another: (2005) 5 SCC 294, the said twin condition also stands satisfied, hence, the applicant is entitled to be released on bail.

8. Accordingly, the bail application is allowed.

9. Let the applicant Kailash Yadav be released on bail in FIR/ Case Crime No.106 of 2023, under Section 8/21 of the NDPS Act, Police Station Jangipur, District Ghazipur 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 :- 8.8.2023

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