Allahabad High Court
Gufran vs State Of U.P. on 25 November, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:184558
Court No. - 66
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 22059 of 2024
Applicant :- Gufran
Opposite Party :- State of U.P.
Counsel for Applicant :- Mohd. Naushad,Noor Ahmed
Counsel for Opposite Party :- G.A.
along with
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14395 of 2024
Applicant :- Bhura Alias Abdul Wahid
Opposite Party :- State of U.P.
Counsel for Applicant :- Amar Nath,Srijan Pandey
Counsel for Opposite Party :- G.A.
Hon'ble Sameer Jain,J.
1. Both these connected matters arose from the same FIR and, therefore, they are being disposed of by the common order.
2. Supplementary counter affidavit filed by the State in case of applicant-Gufran and compliance affidavit filed by the State in case of applicant-Bhura are taken on record.
3. Heard Sri Noor Ahmed, learned counsel for the applicant-Gufran and Sri Srijan Pandey, learned counsel for the applicant Bhura and Sri Jhamman Ram, learned AGA-I for the State-respondent.
4. The instant application has been filed seeking release of the applicants on bail in Case Crime No. 79 of 2024, under Sections 8/20/29 NDPS Act, Police Station- Kairana, District- Shamli, during pendency of the trial in the court below.
5. As per prosecution, applicants were apprehended by the police while they were moving from a four wheeler and from the car 10.020 Kg. charas was recovered.
6. Learned counsels for the applicants submitted that on the basis of false allegation, applicants have been made accused in the present matter and actually, nothing incriminating could be recovered from their possession.
7. They further submitted that from the recovery memo, itself it is apparent that at the time of recovery, sample of alleged recovered contraband was drawn at spot in violation of Section 52-A NDPS Act and from the personal affidavit filed by the S.P. concerned in case of applicant-Bhura, it also reflects that mandatory provisions of Section 52-A NDPS Act have not be complied with and, therefore, considering this fact, chances of conviction of applicants in the present matter is quite remote. They 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 if there is non compliance of mandatory provisions of Section 52-A NDPS Act then even FSL report is nothing but a waste paper.
8. They further submit, as chances of conviction of the applicants in the present case is weak, therefore, Section 37 of NDPS Act can not create any bar in enlarging the applicants on bail.
9. Learned counsel appearing on behalf of applicant-Gufran further submitted that apart from the present case, he is however having criminal history of three other cases but he is not having any previous criminal history of NDPS Act. Learned counsel appearing on behalf of applicant-Bhura submitted that he is not having any criminal history.
10. They further submitted that applicants are in jail in the present matter since 22.02.2024 i.e. for last more than nine months.
11. Per contra, learned AGA opposed the prayer for bail and submitted that from the possession of applicants more than 10 Kg. charas was recovered, which is huge commercial quantity but could not dispute the fact that sample of the alleged recovered contraband was not drawn in compliance of Section 52-A NDPS Act. He further could not dispute the fact that applicants are not having any previous criminal history of NDPS Act and there are in jail in the present matter for last more than nine months.
12. I have heard learned counsel for the parties and perused the record of the case.
13. However, as per allegation, from the possession of applicants more than 10 Kg. charas was recovered, which is huge commercial quantity but from the personal affidavit filed by the S.P. concerned in case of applicant-Bhura, it reflects that sample of the alleged recovered contraband was not drawn in compliance of Section 52-A NDPS Act, therefore, even as per prosecution agencies, there was non compliance of mandatory provisions of Section 52-A NDPS Act.
14. Law is settled that provisions of Section 52-A NDPS Act are mandatory in nature and on its non compliance, conviction of an accused is highly improbable.
15. The Apex Court in case of Mohammed Khalid(supra), on which reliance was placed by learned counsel for the applicants, categorically observed that if sample of the alleged recovered contraband was drawn in non compliance of provisions of Section 52-A NDPS Act then even FSL report is nothing but a waste paper.
16. Further, however, from the possession of applicants, as per prosecution, commercial quantity of contraband was recovered and as per Section 37 NDPS Act, an accused should not be enlarged on bail unless and untill, the Court is of the reasonable view that he is not guilty and he will not again commit the offence under the provisions of NDPS Act but as it appears that due to non compliance of Section 52-A NDPS Act chances of conviction of applicants in the present matter appear to be highly improbable, therefore, this Court may reasonably infer that applicants might not be guilty and further, as applicants are not having any criminal antecedents of NDPS Act, therefore, it can not be said that after release, they will again commit such offence. Therefore, twin conditions given U/s 37 NDPS Act have been satisfied.
17. Further, applicants are in jail in the present matter since 22.02.2024 i.e. for last more than nine months.
18. Therefore, considering the facts and circumstances of the case discussed above, in my view applicants are entitled to be released on bail.
19. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.
20. Let the applicants- Gufran and Bhura Alias Abdul Wahid 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.
21. 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.
22. 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 :- 25.11.2024
KK Patel
