Allahabad High Court
Rajesh Kumar vs State Of U.P. on 15 February, 2023
Bench: Nalin Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 77
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7306 of 2023
Applicant :- Rajesh Kumar
Opposite Party :- State of U.P.
Counsel for Applicant :- Prashant Sharma,Pankaj Sharma
Counsel for Opposite Party :- G.A.
Hon'ble Nalin Kumar Srivastava,J.
Present bail application has been filed by the applicant Rajesh Kumar with the prayer to enlarge him on bail in case crime no. 24 of 2023, under Sections 8/22 N.D.P.S. Act, P.S. Didauli, District Amroha.
Heard Shri Pankaj Shrama, learned counsel for the applicant as well as the learned A.G.A for the State and perused the record.
It has been submitted by the learned counsel for the applicant that 4.050 kg opium is alleged to have been recovered from the joint possession of the applicant and other co-accused persons, whereas in fact, no such recovery has taken place. There is no independent witness of the alleged recovery and arrest of the applicant. The mandatory provisions of N.D.P.S Act have not been complied with in the present case. Applicant is the driver of the vehicle in question. Applicant has been languishing in jail since 16.1.2023 and in case he is enlarged on bail, he will not misuse the liberty of bail.
On the other hand, learned A.G.A. vehemently opposed the prayer for bail.
In this matter, narcotics substance 'opium' in the quantity of 4.050 kilogram was found from the illegal joint possession of the applicant and co-accused persons, which was kept in a car in a transparent poly-pack wherein the present accused and the other two accused were sitting. That vehicle was searched by the police and narcotics substance was recovered. A perusal of the F.I.R. shows that the police was not aware of the fact that the applicant and his companions are having narcotics substance in the vehicle. The information, which the police received from the informer, was only to the effect that certain suspicious persons are sitting in a vehicle, who may commit theft or extortion in the area. When on this information the police reached the spot and warned them to surrender, they opened fire upon the police with intention to kill, however, they could not escape and held by the police. On search being made by the police, the narcotics substance, kept under the driver seat of the said vehicle, was recovered. Hence, the present recovery comes within the category of 'chance recovery' and in a case of chance recovery to follow the procedure contemplated under Sections 42 and 50 of N.D.P.S. Act is not necessary, as has been held by the Hon'ble Apex Court in the case of Sorabkhan Gandhkhan Pathan and others vs. State of Gujarat, Criminal Appeal Nos. 1005-1006 of 2001, decided on 16.7.2003. At this stage, it may be presumed that conscious possession by the applicant of contraband substance (opium) is, prima facie, established in view of the judgment of the Hon'ble Supreme Court in Dharampal Singh vs. State of Punjab, (2010) 9 SCC 608.
In the facts and circumstances of the case, this Court in the light of judgment and order of Hon'ble Supreme Court in Narcotics Control Bureau vs. Mohit Aggarwal, 2022 SCC OnLine SC 891 does not find reasonable grounds, as provided in clause (b) of sub-section (1) of Section 37 of the N.D.P.S. Act, to grant bail to the applicant in the present matter. Also following the dictum given by the Hon'ble Supreme Court in Union of India through Narcotics Control Bureau Versus Md. Nawaz Khan, (2021) 10 Supreme Court Cases 100, I do not find it a fit case for bail, as it is a case of recovery of narcotics substance, which falls in the category of commercial quantity.
The bail application is rejected.
Order Date :- 15.2.2023
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