Mujahir Chauhan vs State Of U.P.
2023 Latest Caselaw 7160 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 85
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 56328 of 2022
 

 
Applicant :- Mujahir Chauhan
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Sheshadri Trivedi,Ajay Kumar Pandey,Sr. Advocate
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Siddharth,J.

Heard Shri Satish Trivedi, learned Senior Advocate assisted by Shri Sheshadri Trivedi, learned counsel for applicant, learned A.G.A. for the State and perused the record.

This bail application has been preferred by the accused-applicant, Mujahir Chauhan, who is involved in Case Crime No. 338 of 2021 under Section 8/20/60 (3) N.D.P.S. Act, Police Station- Hafizganj, District- Bareilly.

There is allegation in the First Information Report against the applicant that he was driver of the seized vehicle where four packets containing black coloured material were recovered .It is alleged that recovered material was Charas. 50 packets of one Kg. each and 100 per 5 gram each was recovered and it is alleged that small quantity of material was collected as sample from all the packets and 340 gram of recovered substance was made as sample. Remaining quantity of material recovered was sealed in separate bags.

Learned Senior Counsel for the applicant has submitted that as per standing order/instruction No. 1/1989 there was violation of the aforesaid standing order /instructions. He has further submitted that applicant is in jail since 11.8.2021.He has no criminal history.The trial will take much time to conclude

Learned A.G.A. has vehemently opposed the bail prayer of the applicant and submitted that allegations against the applicant are serious and drugs are having disastrous consequence.

After hearing the rival contentions it be useful to refer to the Standing Order/Instruction No. 01/1982,which has been considered by a coordinate Bench of this Court in Criminal Misc. Bail Application No.18303 of 2020 as follows:-

"2.1 All drugs shall be classified, carefully, weighed and sampled on the spot of seizure.

2.2 All the packages/containers shall be numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the persons from whose possession the drug is recovered and a mention to this effect should invariably be made in the panchnama drawn on the spot.

2.3 The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the cases of opium, ganja and charas (hashish) were a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn.

2.4 In the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container.

2.5 However, when the packages/containers seized together are of identical size and weight, bearing identical markings and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects the packages/container may be carefully bunched in lots of 10 package/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of, 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn.

2.6 Where after making such lots, in the case of hashish and ganja, less than 20 packages/containers remain, and in the case of other drugs, less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn.

2.7 If such remainder is 5 or more in the case of other drugs and substances and 20 or more in the case of ganja and hashish, one more sample (in duplicate) may be drawn for such remainder package/container.

2.8 While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative sample the in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.

4. He next submitted that there is no evidence on record regarding taking of samples as provided in standing order / instructions mentioned above, as such, taking of proper sample is highly doubtful.

5. On the point of sampling of contraband, learned counsel placed reliance upon following judgments and orders:

(i) Phool Chand Ali Vs. Union of India reported in 2020 O Supreme (All) 797.

(ii) Om Prakash Verma Vs. State of U.P. reported in 2022 O Supreme (All) 323.

(iii) Amrik Singh Vs. State of U.P. order dated 9.1.2014 passed in Criminal Appeal No.1106 of 2013

(iv) Gaunter Edwin Kircher Vs. State of Goa reported in (1993) 3 SCC 145

6. Learned counsel for applicant further submitted that standing instruction and the guidelines issued by the authority having legal sanction are required to be strictly followed by the police / arresting authorities as held by the Apex Court in the case of Noor Aga Vs. State of Punjab (2008) 3 JIC 640 (S.C.), the paragraph nos.123, 124 and 125 of the judgment are as follows:

7. Guidelines issued should not only be substantially complied, but also in a case involving penal proceedings, vis-`-vis a departmental proceeding, rigours of such guidelines may be insisted upon. Another important factor which must be borne in mind is as to whether such directions have been issued in terms of the provisions of the statute or not. When directions are issued by an authority having the legal sanction granted therefor, it becomes obligatory on the part of the subordinate authorities to comply therewith.

8. Recently, this Court in State of Kerala & Ors. v. Kurian Abraham (P) Ltd. & Anr. [(2008) 3 SCC 582], following the earlier decision of this Court in Union of India v. Azadi Bachao Andolan [(2004) 10 SCC 1] held that statutory instructions are mandatory in nature.

9. Logical corollary of these discussions is that the guidelines such as those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. Clearly, there has been no substantial compliance of these guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone against the prosecution."

10. Learned counsel further submitted that if power is given under the Act / statute / Rules to do a certain thing in a particular way, the thing must be done in that way or not at all. The other method are forbidden. On this point, learned Counsel placed reliance upon the case of Taylor Vs. Taylor [(1875) 1 Ch.D 426, 431] , Ramchandra vs. Govind AIR 1975 SC 915 Chettiam Vettil Ahamad Vs. Taluk Land Board (1979) 3 SCR 839, Shivcharan Sharma Vs. Union of India and Others 1981 A.L.J. 641 and A.R. Antalay Vs. Ramdas Sriniwas Nayak and Another 1984 2 SCC 500 wherein Hon'ble Court have held that failure to comply with the provisions made for doing a particular act renders the action nonest."

Let applicant be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions-

(i) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code;

(ii) In case, the applicant misuses the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the Court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(iii) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.

Identity, and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

Order Date :- 13.3.2023

Atul kr. sri.