Allahabad High Court
Mohammad Arbaz vs State Of U.P. on 18 November, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:180352
Court No. - 66
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19773 of 2024
Applicant :- Mohammad Arbaz
Opposite Party :- State of U.P.
Counsel for Applicant :- Amit Kumar Pandey
Counsel for Opposite Party :- G.A.
Hon'ble Sameer Jain,J.
1. Counter affidavit filed by the State is taken on record.
2. Heard Sri Amit Kumar Pandey, learned counsel for the applicant and Sri Rajeev Dhar Dwivedi, learned AGA for the State-respondent.
3. The instant application has been filed seeking release of the applicant on bail in Case Crime No. 157 of 2024, under Sections 8/20/29 NDPS Act and 3/25 Arms Act, Police Station- Mundha Panday, District- Moradabad, during pendency of the trial in the court below.
4. According to prosecution case, from the possession of applicant 1.26 Kg. charas was recovered and co-accused Naved managed to escape from the spot.
5. Learned counsel for the applicant submitted that on the basis of false allegation, applicant has been made accused in the present matter and actually nothing incriminating could be recovered from his possession. He further submitted that even entire recovery was made in presence of the police personnel and no public witness was taken and this fact casts serious doubt on the prosecution case.
6. He further submitted that even from the recovery memo, it reflects that sample of the alleged recovered contraband was drawn at spot, therefore, sample was drawn in violation of mandatory provisions of Section 52-A NDPS Act. He placed reliance upon the judgment of the Apex Court passed in case of Mohammed Khalid and another Vs. State of Telangana 2024 SCC OnLine SC 213 and submitted that as prima facie it appears that there was violation of mandatory provisions of Section 52-A NDPS Act, therefore, conviction of applicant in the present matter is not possible.
7. He further submitted that applicant is not having any criminal history and he is in jail in the present matter since 24.03.2024 i.e. for last almost 8 months.
8. Per contra, learned AGA opposed the prayer for bail and submitted that from the possession of applicant 1.26 Kg. charas was recovered, which is the commercial quantity of charas but could not dispute the fact that sample of the alleged recovered contraband has been drawn at spot and no sample was drawn before the magistrate. He further could not dispute the fact that applicant is 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 prosecution case, from the possession of applicant 1.26 Kg. charas was recovered, which is the commercial quantity of charas but from the recovery memo, it reflects that after search sample of the alleged recovered charas was drawn at spot and there is no evidence that any sample was drawn before the magistrate, therefore, prima facie, it appears that in violation of Section 52-A NDPS Act sample of the alleged contraband was drawn, therefore, considering the law laid down by the Apex Court in case of Mohammed Khalid(supra) on which reliance was placed by learned counsel for the applicant, chances of conviction of applicant in the present matter appears to be quite remote.
11. Further, applicant is not having any criminal history and he is in jail in the present matter since 24.03.2024 i.e. for last almost 8 months.
12. Therefore, considering the facts and circumstances of the case discussed above, in my view applicant is entitled to be released on bail.
13. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.
14. Let the applicant- Mohammad Arbaz 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.
15. 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.
16. 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 :- 18.11.2024
KK Patel
