Allahabad High Court
Asfaq Alam vs State Of U.P. And Another on 22 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:93151
Court No. - 73
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 17920 of 2024
Applicant :- Asfaq Alam
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Akhilesh Kumar Gupta,Rakesh Kumar Gupta
Counsel for Opposite Party :- G.A.
with
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 17927 of 2024
Applicant :- Hanif Ali Khan
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Akhilesh Kumar Gupta,Rakesh Kumar Gupta
Counsel for Opposite Party :- G.A.
Hon'ble Sameer Jain,J.
1. As, both the bail applications are arising out of same FIR, therefore, both the bail applications are being disposed off by a common order.
2. Heard Sri Rakesh Kumar Gupta, learned counsel for the applicants in both the bail applications and Sri Ajeet Kumar Madheshiya, learned Brief Holder for the State.
3. The instant bail applications have been filed seeking release of the applicants on bail in Case Crime No. 288 of 2023, under Sections 8/20 N.D.P.S. Act, Police Station Ahraura, District Mirzapur during pendency of the trial.
4. FIR of the present case was lodged against applicants and according to the FIR from the possession of applicants total 151.100 Kgs. Ganja was recovered.
5. Learned counsel for the applicants submitted that on the basis of false allegation, applicants have been made accused in the present matter and they are having no concern with the alleged car from which recovery was made. He further submits that admittedly applicants were not the owner of the car.
6. He further submits that even from perusal of the recovery memo, it reflects that sample of alleged contraband has been drawn at the spot and no sample was drawn before the Magistrate, therefore, in view of the observation made by the Apex Court in the case of Mohammed Khalid and another Vs. State of Telangana 2024 SCC OnLine SC 213, the chances of conviction of the applicants appear to be quite remote.
7. He further submits that applicants are not having any criminal history and in the present matter they are in jail since 24.12.2023.
8. Per contra, learned AGA opposed the prayer for bail and submits that from the possession of applicants huge commercial quantity of Ganja was recovered but could not dispute the fact that sample of alleged recovered contraband has been drawn at spot and no sample was drawn before the Magistrate. He further could not dispute the fact that applicants are not having any criminal history.
9. I have heard learned counsel for the parties and perused the record of the case.
10. However, as per allegation from the possession of applicants 151 Kgs. Ganja was recovered, which is huge commercial quantity but from the record it reflects that sample of alleged recovered contraband has been drawn at spot and no sample was drawn before the Magistrate, therefore, it appears that sample of alleged recovered contraband has been drawn in contravention of provisions of Section 52-A of N.D.P.S. Act and is also against the law laid down by the Apex Court in the case of Union of India Vs. Mohan Lal and another (2016) 3 SCC 379.
11. Further, even from the judgment of the Apex Court passed in the case of Mohammed Khalid (supra) on which reliance was placed by learned counsel for the applicant, it appears that probability of conviction of the applicants appear to be quite remote, therefore, this Court for the purpose of Section 37 of N.D.P.S. Act can infer that applicants are not guilty.
12. Further, applicants are not having any criminal history, therefore, it cannot be said that after release on bail applicants will again commit offence under the provisions of N.D.P.S. Act.
13. Further, in the present matter applicants are in jail since 24.12.2023.
14. Therefore, considering the facts and circumstances of the case discussed above, in my view, applicants are entitled to be released on bail.
15. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.
16. Let the applicants - Asfaq Alam and Hanif Ali Khan be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(i) The applicants shall appear before the trial court on the dates fixed, unless his personal presence is exempted.
(ii) The applicants shall not directly or indirectly, make 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 any police officer or tamper with the evidence.
(iii) The applicants shall not indulge in any criminal and anti-social activity.
17. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicants.
18. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial.
Order Date :- 22.5.2024
AK Pandey
