Mohd. Ayub vs State Of U.P. Thru. Prin. Secy. Home Lko
2024 Latest Caselaw 16043 ALL

Allahabad High Court

Mohd. Ayub vs State Of U.P. Thru. Prin. Secy. Home Lko on 8 May, 2024

Author: Pankaj Bhatia

Bench: Pankaj Bhatia

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2024:AHC-LKO:35475
 
Court No. - 12
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1936 of 2022
 
Applicant :- Mohd. Ayub
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko
 
Counsel for Applicant :- Roshan Babu Gupta,Kaleem Ur Rehman,Mohemmed Amir Naqvi,Shaista Parveen,Vaibhav Shukla
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Pankaj Bhatia,J.
 

1. Heard Ms. Shaista Praveen, learned counsel for the applicant; Shri G.D. Bhatt, learned AGA and perused the record.

2. The applicant seeks enlargement on bail in FIR No.532 of 2021, under Section 8/20 of NDPS Act, P.S. Vibhuti Khand, District Lucknow.

3. In terms of the FIR it was alleged that on the basis of information received that some person was carrying the offending goods Charas, a team was constituted and the applicant was apprehended carrying a bag in which allegedly Charas was kept. It was alleged that in the bag in the possession of the applicant, 23 packets each weighing around 500 gms each were recovered. The total weight of the offending goods was 11 kg 700 gm out of which samples were drawn from each of the packets and were mixed and a composite sample was drawn and was sent for analysis and the applicant was linked with the offence in question. The FIR also records that the search was carried out in the presence of Gazetted Officer.

4. In the light of the said allegation, the submission of counsel for the applicant is that the recovery was not done in the presence of any independent witnesses. She further argues that drawing sample from each of the packets and mixing them and making them a composite sample is contrary to the Standing Order Nos.1/88 & 1/89 of the Central Government and cannot withstand the scrutiny of law. She further argues that the sample size was also not indicated in the FIR. She further argues that in terms of the FSL report allegedly, 36.5 gm of the sample was sent for analysis that too on 08.11.2021 whereas the alleged recovery was affected on 07.10.2021 without there being any explanation for delay of more than one month. She further argues that the order sheet on record which has been filed alongwith the supplementary affidavit today indicates that even PW 1 whose part statement is recorded is not coming forward and the applicant who is aged about 66 years and has no criminal history continues to languish in custody since 08.10.2021. She, thus, argues that the applicant may be enlarged on bail.

5. Learned AGA has opposed the bail application by arguing that a very heavy quantity of narcotics i.e. 11 kg 700 gm was recovered from the bag carried by the applicant and considering the fact that the recovery is more than the commercial quantity and the FSL report has certified the product to be Charas, the bail application deserves to be rejected in view of the bar crated by virtue of Section 37 of the NDPS Act.

6. 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 passed. Section 37 of the NDPS Act was interpreted 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, the recovery was affected from the bag allegedly carried by the applicant; the manner in which the sample was drawn and mixed and made a composite sample is clearly contrary to the Standing Orders; the FIR does not indicate the sample size and the delay in sending the sample of about one month bears no explanation. The said discrepancies prima-facie can lead to form an opinion that the prosecution may not be able to establish the case against the applicant.

8. In the present case, the applicant is in custody since 08.10.2021 having no criminal history. The order sheet of the trial Court reveals that none of the prosecution witnesses is coming forward for examination despite various dates being fixed.

9. Considering the aforesaid facts and the fact that the applicant has suffered a pre-trial detention of almost three years, he is aged about 66 years and the discrepancies as noted above, the applicant is entitled to be enlarged on bail. In view thereof, the application is allowed.

10. Let the applicant Mohd. Ayub be released on bail in aforesaid FIR number on his furnishing a personal bond with two local sureties of Lucknow, Uttar Pradesh 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 :- 8.5.2024

nishant