Brijendra Singh vs State Of U.P.
2023 Latest Caselaw 21648 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:161394
 
Court No. - 75
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35251 of 2023
 

 
Applicant :- Brijendra Singh
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Radhey Shyam Shukla,Vipul Shukla
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Pankaj Bhatia,J.

1. Heard Sri Vipul Shukla, 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 one kilogram of Charas was recovered from the polythene bag carried by the applicant.

3. The contention of the Counsel for the applicant is that recovery is not in accordance with the mandate of Sections 50 and 51 of the NDPS Act read with Section 100 of Cr.P.C. He further argues that the sample has not been drawn as per the mandate of Section 52A of the NDPS Act. He argues that the Gazetted Officer as referred in the FIR has not even sighed, which is even clear from the allegations levelled in the FIR. He argues that the applicant has no criminal antecedents and the recovery is allegedly 1 kilogram which is equal to the commercial quantity. He further argues that in view of the definition of the commercial quantity as defined in Section 2(viia) of the NDPS Act, the seized goods would quantify to be a commercial quantity. He places reliance on the judgment of this Court rendered in the case of Wahid Ali vs Narcotics Control Bureau, Lucknow (Criminal Misc. Bail Application No.13590 of 2021) decided on 12.07.2023.

4. Learned A.G.A. vehemently opposed the bail prayer.

5. Considering the law as explained by this Court in the case of Wahid Ali (supra) based upon the judgments of the Hon'ble Supreme Court in the case of Mohd Muslim @ Hussain vs. State (NCT of Delhi); 2023 LiveLaw (SC) 260, primarily the recovery is not in terms of the mandate of Section 50 of the NDPS Act, the Gazetted Officer has not signed the recovery memo, the recovery of one kilogram Charas would not be a commercial quantity as defined under Section 2(viia) of the NDPS Act, as such, the applicant who has been alleged to be carrying the goods less than the commercial quantity and having no criminal antecedents, the applicant is entitled to be released on bail.

6. Accordingly, the bail application is allowed.

7. Let the applicant Brijendra Singh be released on bail in FIR/ Case Crime No.506 of 2023, under Sections 8/20 of the NDPS Act, Police Station Banda, District Shahjahanpur 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 :- 10.8.2023

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