Allahabad High Court
Jitendra vs State Of U.P. on 8 August, 2023
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:160224
Court No. - 75
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21795 of 2023
Applicant :- Jitendra
Opposite Party :- State of U.P.
Counsel for Applicant :- Sudhir Kumar Agarwal
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 the basis of information received, a search was carried out in a truck in which three persons were traveling. On stopping the truck, three persons were searched in person and subsequently, from the vehicle in question 838 kg. of Doda/Posta bag in various forms was allegedly recovered. It is further recorded that on being given an offer of search before the Gazetted Officer/Magistrate, the applicant and the other persons gave up their right and agreed for a search by the police party. It is further recorded that out of each bundle of about 48 packets, 500 gms. of Doda/Posta was found and sent for FSL report.
3. The counsel for the applicant argues that admittedly, the search was carried out in person from the applicant also and thus, it was mandatory to have observed the mandate of Section 50 of the NDPS Act, which has not been done. He further argues that there are no independent witnesses to the search, thus, there is a violation of Section 51 read with 100 Cr.P.C. He further argues that the sampling has not been done in the presence of Magistrate which violates the mandate of Section 52-A of the NDPS Act. He further argues that as per the FIR, 500 gms. each was drawn from 48 different packets which make the total sampling size of 24 kg, whereas, FSL report filed along with the counter affidavit indicates the sample analyzed by the FSL as 210 gms. He places reliance on the orders passed by this Court in Crl. Misc. Bail Application No. 13590 of 2022, in the case of Wahid Ali Vs. N.C.B. as well as judgment of the Supreme Court in the Case of MohdMuslim@ Hussain vs State (NCT of Delhi); 2023 LiveLaw (SC) 260. He argues that applicant has no criminal antecedents except the cases under the NDPS Act and thus, the applicant should be enlarged on bail. He 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 in support of the said arguments.
4. Learned A.G.A. vehemently opposed the bail prayer by arguing that huge quantity was recovered and the applicant was traveling in the truck and thus, he was in conscious possession of the goods in question. He places reliance on the judgment of the Supreme Court in the case of Union of India through NCB, Lucknow Vs. Md. Nawaz Khan, arising out of Criminal Appeal No. 1043 of 2021 (arising out of SLP (Crl.) No. 1771 of 2021 to argue on the issue of conscious possession. He, thus, argues that the bail application should be rejected.
5. After hearing the counsel for the parties, prima facie, the mandate of Section 50, 51 and 52-A of the NDPS Act read with Section 100 Cr.P.C. has not been followed. There is a clear non-compliance of the mandate of provisions of Chapter V of the NDPS Act, thus, following the law as explained in the case of Mohammad Muslim (supra), I can form a view that the prosecution may not be able to establish the guilt based upon the material collected and proposed to be relied upon. As the applicant has no criminal antecedents of an offence under NDPS Act, following the ratio of the judgment in the case of Brahmjit Singh (Supra), the second of the twin condition of Section 37 is also satisfied. The applicant is in custody since 25.02.2023, as such, on the reasoning recorded above, I am of the view that the applicant is entitled to be released on bail.
6. Accordingly, the bail application is allowed.
7. Let the applicant Jitendra be released on bail in FIR/ Case Crime No. 20 of 2023, under Section 8/20 NDPS Act, P.S. Ramraj, District Muzaffarnagar, 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
S.A.
