Mohd. Salman vs State Of U.P. Thru. Prin. Secy. Dept. Of ...
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Allahabad High Court

Mohd. Salman vs State Of U.P. Thru. Prin. Secy. Dept. Of ... on 1 August, 2024

Author: Pankaj Bhatia

Bench: Pankaj Bhatia

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2024:AHC-LKO:52710
 
Court No. - 12
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1368 of 2023
 

 
Applicant :- Mohd. Salman
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Dept. Of Home Civil Sect. Lko
 
Counsel for Applicant :- Srees Kumar Srivastava,Akash Tiwari
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Pankaj Bhatia,J.
 

1. Heard Sri Ravi Yadav, learned counsel for the applicant as well as learned A.G.A. and perused the record.

2. The applicant seeks enlargement on bail in FIR No.263 of 2022, under Sections 8/20 of the NDPS Act, Police Station Dahi, District Unnao.

3. In terms of the FIR, it was alleged that on the basis of the information received, a search was carried out after constituting a police team, in which, two persons including the applicant were apprehended and from the bag carried by them allegedly 5 packets of Charas was recovered and from the applicant, it was alleged that from the bag carried by him allegedly 2 kilograms 600 grams of Charas was recovered. It was also recorded that both of them had confessed and thereafter from the 5 packets, a sample of 100 grams was drawn and sent for chemical analysis. It was also recorded that there was no independent witness to the search.

4. In the light of the aforesaid, it is argued by the Counsel for the applicant that there was no independent witness to the search. He further argues that the mandate of Section 52-A of the NDPS Act has not been followed. He places reliance on the judgments of the Hon'ble Supreme Court in the cases of Mohd Muslim @ Hussain v. State (NCT of Delhi); 2023 LiveLaw (SC) 260 and Yusuf alias Asif vs State;AIR 2023 SC 5041. He lastly argues that the applicant is in custody since 29.08.2022 and not even one witness has been examined.

5. Learned A.G.A. vehemently opposed the bail prayer by arguing that the commercial quantity was allegedly recovered from the applicant, which cannot be said to a case of false implication and considering the huge recovery and the mandate of Section 37 of the NDPS Act, the bail application deserves to be rejected.

6. As regards the criminal history, in the counter affidavit, it has been stated that the applicant was involved in Case Crime No.6673 of 2023, under Sections 18/20 of NDPS Act whereas as per the information received and filed along with the supplementary affidavit, it is made clear that the applicant has been not involved in the said case and has no case under NDPS Act except the present case.

7. Considering the submissions made at the bar, as the recovery is more than the commercial quantity, the test of Section 37 of the NDPS Act has to be considered.

8. Section 37 of NDPS Act was interpreted by the Hon'ble Supreme Court in the case ofMohd Muslim @ Hussain (supra) to the following effect:

"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."

9. The effect of not following the mandate of Section 52-A of NDPS Act has been interpreted by the Hon'ble Supreme Court in the case of Yusuf alias Asif (Supra) to the following effect:

"16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated."

10. Considering the apparent infirmities, which includes the non-presence of independent witness and not drawing the sample as prescribed in the circular beingbeing Circular No.1/88; not following the mandate of Section 52-A, a prima facie view can be formed that the prosecution may not be able to prosecute the applicant based upon these infirmities coupled with the fact that not even one witness has been examined so far and the fact that the applicant has no criminal history under NDPS Act and is in custody since 28.08.2022, I am of the view that the applicant is entitled to be released on bail. Accordingly, the bail application is allowed.

11. Let the applicant Mohd. Salman be released on bail in the aforesaid first information report number 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 :- 1.8.2024

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