Mahesh Kumar Chandra vs State Of U.P. Thru. Secy. Home ...
2023 Latest Caselaw 18450 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:47712
 
Court No. - 11
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9049 of 2023
 

 
Applicant :- Mahesh Kumar Chandra
 
Opposite Party :- State Of U.P. Thru. Secy. Home Civil Sectt. U.P. Lko.
 
Counsel for Applicant :- Rizwanul Haque Ansari
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Pankaj Bhatia,J.

1. Heard learned counsel for the applicant, learned AGA and perused the record.

2. The FIR in question was lodged alleging that on 17.04.2022, the applicant was apprehended and on a search, 900 tablets of Alprazolam were recovered. The said 900 tablets weigh around 180 gms., out of which 40 tablets weighing 8 gm were sent for chemical analysis. The chemical analysis report is not on record and the applicant is in custody since 17.04.2022.

3. In support of the bail application, learned counsel for the applicant argues that there is a clear non-compliance of Section 50 of the NDPS Act. He argues that the manner in which the alleged quantity is shown is also contrary to the law as every tablet contains a particular quantity of Alprazolam and the whole tablet cannot be weighed to conclude that the entire tablet was Alprazolam. He argues that the compound of Alprazolam is mentioned in milligram in each tablet and the respondent has erred in weighing the entire tablet to conclude that the quantity recovered was more than commercial quantity.

4. Learned AGA opposes the bail application by arguing that in view of the fact that prima-facie, the recovery is of commercial quantity, the satisfaction required under Section 37(1)(b)(ii) of NDPS Act has to be satisfied.

5. Considering the submissions made at the Bar, on a plain reading of the FIR it is clear that the option of getting the applicant searched before the Gazetted Office/Magistrate was given which allegedly was refused by the applicant. Section 50 of the NDPS Act is mandatory and cannot be waived. In the present case, neither the recovery was in the presence of Gazetted Officer nor in the presence of any independent witnesses as is mentioned in the FIR, which isthe mandate of Section 50 of the NDPS Act.

6. This Court had the occasion to consider the scope of Section 50 and 51 of the NDPS Act read with the mandate of Section 100 Cr.P.C., in the case of Wahid Ali v. Narcotics Control Bureau Lucknow; Criminal Misc. Bail Application No.13590 of 2021 decided on 12.07.2023 and it has held that the 'illegal possession' mentioned in Section 8 of NDPS Act has to be decided after following the mandatory provisions of Chapter V of the NDPS Act. The twin conditions specified under Section 37 of NDPS Act were considered in view of the law laid down in the case of Mohd Muslim @ Hussain v. State (NCT of Delhi); 2023 LiveLaw (SC) 260 wherein the Supreme Court has observed 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 vs. Ratan Malik). 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 19 (2009) 2 SCC 624 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. In the present case, prima-facie, there is a clear violation of Section 50 of the NDPS Act, thus, there are reasons to believe that the accused guilt may not be proved.

8. As regards the second condition of the twin conditions prescribed under Section 37 of NDPS Act, as the applicant has no criminal antecedent, as such, in view of the law laid down in the case of Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr. reported in (2005) 5 SCC 294, the second condition is also satisfied.

9. For all the reasons recorded above coupled with the fact that the applicant is in custody since 17.04.2022 and the trial has not even started, the applicant is entitled to be enlarged on bail. In view thereof, the application is allowed.

10. Let the applicant Mahesh Kumar Chandra be released on bail in FIR No.178 of 2022, under Section 8/21 of Narcotic Drugs and Psychotropic Substance Act, P.S. Palia, District Kheri on his furnishing a personal bond with two local sureties of the like amount each to the satisfaction of 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 :- 21.7.2023

nishant