Allahabad High Court
Ashu Saroj vs State Of U.P Thru. Prin. Secy. Home ... on 22 May, 2024
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:38989
Court No. - 12
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13259 of 2023
Applicant :- Ashu Saroj
Opposite Party :- State Of U.P Thru. Prin. Secy. Home Deptt. Govt. Civil Secrt. Lko.
Counsel for Applicant :- Gaurav Shukla,Girish Kumar Pandey,Kaushal Kishore,Sher Bahadur Yadav
Counsel for Opposite Party :- G.A.
Hon'ble Pankaj Bhatia,J.
1. Heard learned counsel for the applicant as well as learned A.G.A. and perused the record.
2. In terms of the FIR, it was alleged that on the basis of an information received, a vehicle bearing no. DL 4C-AU 9374 was intercepted, when the applicant who sitting in the driving seat was apprehended along with two other persons on the basis of checking of the vehicle in question, allegedly 68.680 KG of Ganja was recovered on the vehicle in question.
3. In the light of the said, the submission of the applicant that the co-accused was enlarged on bail vide order dated 09.04.2024, however, the applicant does not claim parity with the co-accused. He further argues that in the present case, the recovery was not in accordance with law and there was no material to suggest conscious possession at the hands of the applicant and further the mandate of Section 52 A of the NDPS Act, was not followed. He places reliance on the judgment of the Supreme Court in the case of Mohd Muslim @ Hussain vs. State (NCT of Delhi) reported in 2023 Live Law (SC) 260 and in the case of Yusuf @ Asif Vs. State : Criminal Appeal No.3191 of 2023 arising out of S.L.P.(Crl.) No.3010 of 202. He lastly argues that the applicant is a student and is in custody since 14.07.2023. He further argues that the trial has not even started.
4. Learned A.G.A. opposed the bail prayer by arguing that the recovery from the vehicle which was driven by the applicant was more than commercial quantity, as such, the test of Section 37 of the NDPS Act has to be satisfied. He does not dispute that the applicant has no criminal history.
5. Considering the submissions made at the Bar as recovery is more than commercial quantity, the test of Section 37 of the NDPS Act has to be satisfied.
6. 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 (Supra) 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 admittedly the sampling has not been done in terms of the prescription contained in Section 52 A of the NDPS Act. The effect of non-following of Section 52 A of the NDPS Act was considered by the Supreme Court in the case of Yusuf @ Asif Vs. State (Supra) to the following effect:
"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 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."
8. In the present case as the recovery was not in terms of the mandate of Section 52 A of the NDPS Act, the first of the twin test prescribed under Section 37 of the NDPS Act is satisfied in favour of the applicant.
9. As the applicant has no criminal history, the second of the twin test is also satisfied in favour of the the applicant is also satisfied in view of the law laid down in the case of Ranjitsing Brahmajeetsing Sharma vs State Of Maharashtra & Anr : AIR 2005 SC 2277.
10. Thus, in view of all the reasons recorded above, the applicant is entitled to be enlarged on bail particularly when the twin tests prescribed under Section 37 of the NDPS Act are satisfied.
11. Thus, the bail application is allowed.
12. Let the applicant Ashu Saroj be released on bail in Case Crime No. 162 of 2023, under Sections 8/20/25 NDPS Act and Section 3/25 Arms Act, Police Station Aliganj, District Ambedkar Nagar, subject to his furnishing a personal bond and two reliable sureties of Rs.50,000/- each to the satisfaction of the court below 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 :- 22.5.2024
Arun
