Allahabad High Court
Bhoora vs State Of U.P. on 24 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:94906
Court No. - 73
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32614 of 2023
Applicant :- Bhoora
Opposite Party :- State of U.P.
Counsel for Applicant :- Kartikey Singh
Counsel for Opposite Party :- G.A.
Hon'ble Sameer Jain,J.
1. Heard Sri Kartikey Singh, learned counsel for the applicant and Sri S.B. Maurya, learned AGA for the State-respondent.
2. The instant second application has been filed seeking release of the applicant on bail in Case Crime No.576 of 2022, under Sections 21/22 N.D.P.S. Act, Police Station- Vrindavan, District- Mathura, during pendency of the trial in the court below.
3. Learned counsel for the applicant submitted that this is the second bail application filed on behalf of the applicant and his first bail application was dismissed by this Court on merits vide order dated 11.04.2023.
4. He further submitted that at the time of first bail application, this fact could not be placed before this Court that sample of the alleged recovered contraband has been drawn at spot and, therefore, sample has been drawn in contravention of the Section 52A of NDPS Act.
5. He further submitted that now law by far has been settled that if there is violation of Section 52A of the NDPS Act with regard to sampling of the alleged contraband, the conviction of accused is not possible. He placed reliance on the judgment of Apex Court in Mohammed Khalid and another Vs. State of Telangana 2024 SCC OnLine SC 213.
6. He further submitted that however apart from the present case, applicant is having criminal history of five other cases including three cases of theft and two cases of Excise Act but in all the cases, applicant is on bail and he is not having any criminal history of NDPS Act and in the present matter, applicant is in jail since 24.10.2022 i.e. for the last more than one and half years.
7. Per contra, learned AGA opposed the prayer for bail and submitted that this is the second bail application filed on behalf of the applicant and his first bail application was dismissed by this Court but could not dispute the fact that sample of the alleged recovered contraband has been drawn at the spot and it was not drawn before the Magistrate. He also could not dispute the fact that applicant is not having any criminal history of NDPS Act.
8. I have heard learned counsel for the parties and perused the record of the case.
9. From the record, it appears that this is the second bail application filed on behalf of the applicant and his first bail application has been dismissed on merits after considering the fact that the alleged contraband involved commercial quantity but from perusal of the order passed in the first bail application of the applicant, it reflects that at the time of hearing of the first bail application, this fact could not be placed before this Court that sample of the alleged recovered contraband has not been drawn before the Magistrate rather it was drawn at the spot. However, the grounds available at the time of the first bail application are in general not available in the second bail application but as the present ground is the legal ground, therefore, this Court is of the view that this ground can be considered even in the second bail application.
10. From the record, it reflects that sample of the alleged recovered contraband has been drawn at the spot and no sample has been drawn before the Magistrate and this fact also could not be disputed by learned AGA and, therefore, in view of the observations made by Apex Court in the case of Mohammed Khalid (supra), on which reliance was placed by learned counsel for the applicant, the probability of the conviction of the applicant is quite weak and, therefore, for the purpose of Section 37 of NDPS Act, this Court can infer that applicant is not guilty.
11. Further applicant is having criminal history of five cases but he is not having any criminal history of NDPS Act and, therefore, it cannot be said that after release on bail, he will again commit offences under the provision of NDPS Act.
12. Further, in the present matter, applicant is in jail since 24.10.2023 i.e. for the last more than one and half years.
13. Therefore, considering the facts and circumstances of the case discussed above, in my view applicant is entitled to be released on bail.
14. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.
15. Let the applicant- Bhoora 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 applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted.
(ii) The applicant 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 applicant shall not indulge in any criminal and anti-social activity.
16. 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 applicant.
17. 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 :- 24.5.2024
SP/-
