Gautam Das vs U.O.I. Thru. Intelligence ...
2023 Latest Caselaw 15445 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Neutral Citation No. - 2023:AHC-LKO:34157
 
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 LUCKNOW 
 
RESERVED ON 5.5.2023
 
DELIVERED ON 17.5.2023
 
Court No. - 12
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12753 of 2021
 

 
Applicant :- Gautam Das
 
Opposite Party :- U.O.I. Thru. Intelligence Officer Thru. N.C.B. Lko
 
Counsel for Applicant :- Shubham Shukla
 
Counsel for Opposite Party :- Akhilesh Kumar Awasthi
 

 
Hon'ble Karunesh Singh Pawar,J.

1.Heard Mr. Shubham Shukla, learned counsel for the applicant, Mr. Akhilesh Kumar Awasthi, learned counsel for N.C.B. and perused the record.

2. It is alleged in the prosecution case that on 6.3.2016 at around 5.54p.m., the Intelligence Officer, NCB, Lucknow rceived a secret information that one person Gautam Das, i.e. the applicant along with Palwinder Singh, driver of Truck No.P.B.11 B.N. 4323 is coming with huge quantity of Gaanja, hidden in the said truck to sell it to Mohd. Jakariya (resident of Mathura) and his firends, Bunty and others in front of Super Dharam Kanta, Mirpur Gram Sabha, Lakhimpur Bahraich Highway, Lakhimpur Kheri . The information was recorded in writing.

On the said information, a team was constituted who reached near the place and tried to contact some local persons and apprised them with the secret information available with the team, and requested them to be present as independent witness but no one agreed to be independent witness. After some time, one silver colour Maruti Ertiga No.UP80 TC 0437 came in front of the Super Dharam Kanta, following which one truck No.PB11 BN 4323 reached there. The STF team stopped both the vehicles and in the meantime NCB Team reached the spot. After taking introduction of the persons, NCB team apprised them with the secret information available with the team and informed them that their search is to be done in connection with the above secret information and they were apprised with their legal right under Section 50 of the NDPS Act in detail and each was given a letter in this respect stating that under Section 50 of the NDPS Act they have got a legal right that if they so desire their personal search could be done before any Magistrate/ Gazetted Officer, and the NCB team can take their personal search.

During the search of Truck No. PB11 BN 4323 on the indication by Gautam Das and Palwinder Singh, a total number of 32 packets were recovered from the cabin and roof of the cabin. All 32 packets were weighed and total weight of Ganja alongwith packing material was found to be of 335.100 Kgs. The substance present in all the packets tested positive for the presence of Ganja. During search of vehicle Maruti Ertiga, a sum of Rs. 40,000/- was also found in the dashboard. Upon asking, Mohd. Jakariya disclosed that he was carrying Rs.40,000/- to purchase Ganja from Palwinder Singh and Gautam Das. For further proceedings, the NCB and STF teams accompanied the above six persons.

3. Learned counsel for the applicant submits that the relevant provision under section 42 N.D.P.S. Act which mandates the officer to forward the information to the immediate superior within 72 hours has not been followed which is evident from the recovery memo. The recovery memo does not make a mention of the time when the conveyance of the applicant was intercepted. Joint officer was given to all the accused for their personal search. The homogenous mixture as sample was taken by taking little quantity from each packet.

It is submitted that the samples have not been drawn in accordance with the guidelines issued by the Government of India. Section 52 of the Act mandates that the ground of arrest must be informed as soon as may be, however, in this case, the same was made known to the applicant at 3.45p.m. on 7.3.2016.

The applicant is in jail since 7.3.2016 and till date only P.W. 1 could be examined. Still seven witnesses are yet to be examined. Learned counsel, in this context, has relied on judgment of Supreme Court in Mohd. Muslim alias Hussain versus State (NCT of Delhi) Criminal Appeal SLP (CRL) No.915 of 2023 and Standing instruction No.1/88 dated 15.3.2018. He further relied on State of Kerala and others versus Kurian Abraham (P) Ltd (2008)3 SCC 582, Union of India and others versus Bal Mukund and others (2009)12 SCC 161, Basant Rai versus State (2012) 191 DLT 405, Union of India versus Mohanlal and others (2016) 3 SCC 379 and Union of India versus Shiv Shankar Keshari (2007)7 SCC 798.

It is further submitted that there is no possibility of the applicant of fleeing away after being released on bail or tampering with the witnesses. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail.

4. In the case of Kurian Abraham (supra), it was held that the statutory instructions are mandatory in nature.

In the case of Bal Mukund (supra), it has been held that the Standing instruction No.1/88 lays down the procedure taking sample. It was noticed that the sample of 25 grams each from all the five bags was taken and then it was mixed and sent to the laboratory. The Supreme Court noticed that adequate quantity from each bag was not taken which was the requirement of law.

In similar circumstance where samples were drawn after breaking small pieces from 8 polythene bags and two homogenous samples were prepared of 25 grams each, it was held by Delhi Court in Basant Rai's case (supra) that the process adopted by the prosecution creates suspicion and benefit must go in favour of the accused.

In Mohanlal's case (supra), the Supreme Court after noticing the conflict between the statutory provisions and the method of taking of samples held and directed that no sooner the seizure of narcotic drugs and psychotropic and controlled substances and coneyance is affected, the same shall be forwarded to the officer incharge of the nearest police station or to the officer empowered under section 53 of the Act. The concerned officer shall then approach the Magistrate with an application under section 52A(ii) of the Act which shall be allowed by the Magistrate as soon as may be required under sub section 3 of section 52A. It was further held that the sampling shall be done under the supervision of the Magistrate.

In the case of Shiv Shankar Keshari (supra), the Supreme Court held that the court while considering the application for bail with reference to section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. The court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.

5. Learned counsel for the N.C.B. has opposed the contention raised by applicant's counsel, however, he could not dispute the fact that the applicant has no criminal history and languishing in jail since 7.3.2016 and till date, P.W.1 has only been examined.

6. On due consideration to the judgments referred to above, larger mandate of Art. 21 of the Constitution, the fact that since 7.3.2016 the applicant is in jail and the prosecution could examine only one prosecution witness who has been examined from 25.10.2017 and continued till 10.8.2022 as is evident from the questionaire filed by the applicant along with the supplementary affidavit, the applicant has no criminal history, evidence in support of accusation, severity of punishment which conviction will entail, larger interest of the pulic and other circumstances, I am of the view that the accused applicant, if released on bail, is not likely to commit any offence while on bail, as also considering twin conditions as mentioned in section 37(1)(b) of N.D.P.S. Act having been satisfied, in as much as there is no likelihood of the accused applicant of committing similar offence in future and he is not likely to be held guilty in the alleged offence; and without expressing any opinion on the merit of the case, I find it to be a fit case for enlarging the applicant on bail and accordingly, the bail application is allowed.

7.Let the applicant Gautam Das, involved in Case Crime No.06 of 2016 under Sections 8/20/29 N.D.P.S. Act, P.S. N.C.B., Lucknow, district Lucknow be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

(i) The applicant will not tamper with the evidence during the trial.

(ii) The applicant will not pressurize/ intimidate the prosecution witness.

(iii) 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.

(iv) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

(v) 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.

(vi) In case the applicant misuses the liberty of bail during trial 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.

(Karunesh Singh Pawar, J)

Order Date :- 17.5.2023

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