Hazi Shahbaz vs State Of U.P. Thru. Prin. Secy. Homr ...
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Allahabad High Court

Hazi Shahbaz vs State Of U.P. Thru. Prin. Secy. Homr ... on 8 May, 2024

Author: Pankaj Bhatia

Bench: Pankaj Bhatia

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2024:AHC-LKO:35618
 
Court No. - 12
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4518 of 2024
 

 
Applicant :- Hazi Shahbaz
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Homr Civil Sectt. Lko
 
Counsel for Applicant :- Anil Kumar Pandey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Pankaj Bhatia,J.
 

1. Counter & Rejoinder affidavits filed today are taken on record.

2. Heard learned counsel for the applicant as well as Sri Ganesh Dutt Bhatt, learned A.G.A. and perused the record.

3. In terms of the FIR allegedly on the basis of an information received, a team was constituted and two vehicles were apprehended on the suspicion of carrying narcotics. Subsequently, the FIR records that three persons sitting in the vehicle were apprehended and two persons ran away from the spot. The name of the said two persons was taken by three persons, who were apprehended along with the offending goods. It was further recorded that on the basis of the search carried out from the two vehicles allegedly 23.490 KG Smack was recovered kept separately in packets and the sample were drawn and sent for analysis.

4. The counsel for the applicant argues that the applicant was not arrested on the spot, no recovery was effected from the applicant and the applicant has no criminal history, as such, the applicant is languishing in jail since 01.03.2024 solely based upon the statement of the co-accused, which has no evidentiary value.

5. Learned A.G.A. opposed the bail prayer by arguing that huge recovery was effected from the two vehicles which was far above the commercial quantity and said two persons including the applicant had fled from the spot and their names was taken by the co-accused, as such, the applicant who was linked with the offence in question considering the mandate of Section 37 of the NDPS Act and huge recovery, no bail should be granted to the applicant. He however, does not dispute that the applicant has no criminal history.

6. Considering the submissions made at the Bar, and the fact that the recovery in terms of the FIR is more than the commercial quantity, the test of Section 37 of the NDPS Act has to be satisfied. The true intent and interpretation of Section 37 of the Act was considered by Hon'ble Supreme Court in the case of Mohd Muslim @ Hussain vs. State (NCT of Delhi) reported in 2023 Live Law (SC) 260, to the following effect (paragraphs 18, 19 and 20) :-

"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 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 Malik19). 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, the applicant was not linked with any recovery and the name of the applicant surfaced in the statement under Section 67 of the NDPS Act, which has no evidentiary value view of the law as laid down in the case of Tofan Singh Vs. State of Tamilnadu : AIR 2020 SC 5592. Thus in the present case, a view can be formed that solely based upon the statement under Section 67 of the NDPS Act, the prosecution may not be able to establish the case against the applicant. As the applicant has no criminal history, in view of the law laid down in the case of Ranjitsing Brahmajeetsing Sharma vs State Of Maharashtra & Anr : AIR 2005 SC 2277, the second requirement of Section 37 of the NDPS Act has also satisfied.

8. In view of the reasoning as recorded above, I am of the view that the applicant is entitled to be released on bail. Accordingly, the bail application is allowed.

9. Let the applicant Hazi Shahbaz be released on bail in FIR/ Case Crime No. 289 of 2023, under Sections 8/21/29 NDPS Act, Police Station Loni Katra, District Barabanki, on his furnishing personal bonds and two reliable sureties each in the like amount 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 :- 8.5.2024

Arun