Allahabad High Court

Satish Yadav vs State Of U.P. Thru. Prin. Secy. Home Lko. on 27 May, 2024

Author: Rajesh Singh Chauhan

Bench: Rajesh Singh Chauhan





HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2024:AHC-LKO:40444
 
Court No. - 11
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14946 of 2023
 

 
Applicant :- Satish Yadav
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko.
 
Counsel for Applicant :- Amar Nath Singh,Rama Kant Jayswal
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard Shri Rama Kant Jayswal, learned counsel for the applicant, Shri Vishwanath Nishad, learned A.G.A. for the State.

2. As per learned counsel for the applicant, the present applicant is in jail since 07.07.2023 in Case Crime No.301 of 2022, under Sections 8/20/27(a) of Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station? Mill Area, District? Raebareli.

3. Learned counsel for the applicant has submitted that the present applicant has been falsely implicated in the case as he has not committed any offence as alleged. Attention has been drawn towards the impugned FIR, wherein the allegation has been levelled against the two accused persons including the present applicant. As per prosecution story, total 135 Kg and 300 gm of 'Ganja' is said to have been recovered from one vehicle i.e. truck bearing No.PB 13 BM 5277, which was being driven by one Paramjit Singh, co-accused and the present applicant was sitting in such vehicle.

4. Learned counsel for the applicant has submitted that though the aforesaid quantity of 'ganja' is above the commercial quantity but in the present case, the relevant provision of NDPS Act i.e. Section 50, 52 and 52-A has not been followed. The present applicant has not been searched before the Gazetted Officer and as an eye wash, which has been indicated in the FIR that such right has been indicated to the applicant but he refused to avail such right. Further, the goods in question and sampling thereof has not been ascertained before the Magistrate in a violation of Section 52-A of the NDPS Act. He has further submitted that there is a Standing Order No.1/89 of Government of India, Ministry of Finance (Department of Revenue), New Delhi dated 13.06.1989, which indicates as under :-

"2.3 The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the cases of opium, ganja and charas (hashish) where a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogemeous and representative before the sample (in duplicate) is drawn.

2.4 In the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from cash package/container in case of seizure of more than one package/container."

5. In the present case, admittedly out of total 54 bags, only one sample of hundred gram from one bag has been collected. Since this is an admitted case in the FIR itself therefore, there is no denial by the other side. The Hon'ble Apex Court in re; Yusuf @ Asif Vs. State : Criminal Appeal No.3191 of 2023 arising out of S.L.P.(Crl.) No.3010 of 2023 has held that if there is any violation of Section 52-A of the NDPS Act, the entire seizure would vitiate and in that case the trial would also be vitiated. So far as the presumption of Section 37 of the NDPS Act is concerned, the true intent and interpretation of Section 37 of the Act was considered by the Hon'ble Apex Court in re; 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."

6. In the present case, there is a prima facie non compliance of mandatory provisions of Section 52-A. Learned counsel for the applicant has stated that the present applicant is having no previous criminal history under the NDPS Act. Learned counsel has further stated that the applicant undertakes that he shall cooperate in the trial proceedings and shall not misuse the liberty of bail. Further, the applicant shall abide by all terms and conditions of the bail order.

7. Learned A.G.A. has, however, opposed the prayer for bail but he could not dispute the aforesaid submissions of learned counsel for the applicant.

8. Without entering into merits of the issue; considering the arguments of learned counsel for the parties; contents and allegations of the FIR; the fact that mandatory compliance of Section50, 52 and 52-A of the NDPS Act has not been done; the second of twin tests prescribed under Section 37 of the NDPS Act is also satisfied as the applicant has no criminal history of an offence under the provisions of N.D.P.S.Act; considering the Standing Order No.1/89 of Government of India, Ministry of Finance (Department of Revenue), New Delhi dated 13.06.1989; the dictum of the Hon'ble Apex Court in re;Yusuf @ Asif (supra) & Mohd Muslim @ Hussain (supra) and undertaking of the applicant that he shall cooperate in the trial proceedings and shall not misuse the liberty of bail, I find it appropriate to release the applicant on bail.

9. Accordingly, the bail application is allowed.

10. Let applicant- Satish Yadav be released on bail in the aforesaid case crime number on his 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 file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.