Allahabad High Court
Ashok Kumar vs State Of U.P Thru. Prin. Secy. Home Civil ... on 29 May, 2024
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:40880
Court No. - 12
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5143 of 2024
Applicant :- Ashok Kumar
Opposite Party :- State Of U.P Thru. Prin. Secy. Home Civil Secrt. Lko.
Counsel for Applicant :- Farooq Ayoob,Mansi Gupta
Counsel for Opposite Party :- G.A.
Hon'ble Pankaj Bhatia,J.
1. Supplementary affidavit filed on behalf of the applicant and counter affidavit filed on behalf of the respondent State are taken on record.
2. Heard learned counsel for the applicant and Shri Ran Vijay Singh, learned A.G.A. for the and perused the record.
3. The accused-applicant seeks bail in Case Crime No.289 of 2023 under sections 8/21/29 of N.D.P.S. Act, Police Station Lonikatra, District Barabanki.
4. In terms of the F.I.R. allegedly on the basis of the information received, two vehicles were apprehended, one of which was driven by the applicant being OMNI Van No.UP-32 KQ7481 in which allegedly eight packets of morphine weighing about 8.166 kg was apprehended and recovered. From the other vehicle, 15 such plastic pouches containing morphine total weighing 15.324 kg. were recovered. Based upon the said recovery, the applicant was linked with the offence in question.
5. Submission of learned counsel for the applicant is that the apprehension of the goods was not in accordance with law. There were no independent witnesses to the search. It is further argued that the mandate of Section 52-A as well as two standing orders were not followed. The procedure of drawing samples is not disclosed. The applicant is in custody since 26.9.2023 having no criminal history of an offence under the N.D.P.S. Act or any other offence prior to the lodging of the offence in question. Subsequently, however the applicant has been saddled with the offence under the U.P.Gangsters Act.
6. It is further argued on behalf of the applicant that the all the co accused were enlarged on bail, although on different grounds and the applicant does not claim parity with the said co accused. Hence, the applicant may be enlarged on bail.
7. Learned A.G.A. opposed the prayer for bail by arguing that a huge quantity of morphine weighing about 8.166 kgs. was recovered from the vehicle driven by the applicant as such the bail application has to be rejected in view of the restrictions imposed by virtue of Section 37 of the N.D.P.S.Act. He further drawn my attention to the fact that the F.S.L. report on record contained in page 18 of the counter affidavit tested the samples as heroine, as such, the bail application should be rejected.
8. Learned counsel for the applicant in the rejoinder affidavit argued that the samples size as per the F.S.L. report relied upon by the learned A.G.A. weighs 4.937 gms. and there is no indication as to from which of the twenty three packets seized simultaneously, the said sample was drawn as such the manner of sampling, timing of sampling and not following the mandate of Section 52-A are apparent infirmities by the prosecution.
9. Considering the submissions made at the bar, as the recovery is both of the commercial quantity, the twin test of Section 37 of the N.D.P.S.Act has to be satisfied.
10. Hon'ble Supreme Court had the occasion to deal with the aspect of Section 37 and the conditions prescribed therein in the case ofMohd Muslim @ Hussain vs. State (NCT of Delhi) reported in 2023 LiveLaw (SC) 260. While dealing with the scope of Section 37, Hon'ble Apex Court 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 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."
11. The effect of not following the mandate of Section 52-A of the N.D.P.S. Act was also considered by the Hon'ble Supreme Court vide its judgement and order dated 13.10.2023 passed in the case of Yusuf @ Asif Vs. State : Criminal Appeal No.3191 of 2023 arising out of S.L.P.(Crl.) No.3010 of 2023 wherein the manner in which the samples are to be drawn were indicated in paragraph 13 of the judgement and the effect of non drawal of the samples in the presence of the Magistrate. Relevant paragraphs 13 and 16 is quoted as under :-
"13. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under sub-sections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of sub-section (2) of Section 52A of the NDPS Act.
16. In the absence of any material on record to establish that the samples of the seized contraband were drwn 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."
12. in the present case, on account of infirmities in the manner of drawing samples, not following the mandate of Section 52-A of the N.D.P.S. Act and without there being any indication as to from which packet, the sample was drawn are the infirmities which are apparently present in the present case based upon which a view can be formed that the prosecution may not be able to establish the offence against the applicant in view of the judgement of the Hon'ble Supreme Court in the case of Yusuf @ Asif Vs. State (supra). Thus, the first test specified under Section 37 of the N.D.P.S. Act is satisfied in favour of the applicant.
13. As regards the second of the twin test prescribed under Section 37 of the N.D.P.S. Act is concerned, as the applicant has no criminal history as such in view of the law laid down in the case of Ranjitsing Brahmajeetsing Sharma vs State Of Maharashtra & Anr : AIR 2005 SC 2277, the second of the twin tests as specified under Section 37 of the NDPS Act is also satisfied in favour of the applicant.
14. For 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 is also satisfied as the applicant has no criminal history of offence under the provisions of N.D.P.S.Act.
15. Thus, the bail application is allowed.
16. Let the applicant Ashok Kumar be released on bail in aforesaid first information report number subject to his furnishing a personal bond and two reliable sureties of Rs.50,000/- each of the like amount 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 :- 29.5.2024
Shukla
