Allahabad High Court
Mustaq vs State Of U.P. on 6 February, 2025
Author: Ashutosh Srivastava
Bench: Ashutosh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:17830
Court No. - 68
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40397 of 2024
Applicant :- Mustaq
Opposite Party :- State of U.P.
Counsel for Applicant :- Pankaj Satsangi
Counsel for Opposite Party :- G.A.
Hon'ble Ashutosh Srivastava,J.
Heard Shri Pankaj Satsangi, learned counsel for the applicant, Shri Yagvalk Pandey, learned A.G.A. for the State and perused the record of the case.
The present bail application under Section 439 Cr.P.C. has been filed on behalf of applicant, Mustaq with a prayer to release him on bail in Case Crime No. 319 of 2024, under Section 8/21/29 of Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station- Wazirganj, District- Budaun.
Learned counsel for the applicant has contended that as per prosecution version 600 grams of Smack is alleged to have been recovered from the possession of the applicant. In fact no such recovery was effected from the applicant. The FIR has been lodged with the delay of two hours. It is further submitted that since such recovery is not supported by independent witness, possibility of his false implication in the crime cannot be ruled out. It is next contended that in the present case the prosecution has failed to follow strictly the provisions of Section 42, 50 and 52A of the N.D.P.S. Act. It is also argued that the applicant is absolutely innocent and has been falsely implicated in the present crime with a view to cause unnecessary harassment and victimize him. Learned counsel for the applicant further submits that as per FIR version there is recovery of Smack, but in the report of Chemical Examination annexed as Annexure-CA2 the alleged recovered contraband is reported to be Heroine. Thus, there is serious doubt regarding recovery of contraband. The applicant, who is in jail since 28.8.2024 having no criminal history to his credit, deserves to be released on bail. In case the applicant is released on bail he will not misuse the liberty of bail.
Per contra learned A.G.A. has opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage who is involved in supplying contraband, therefore, the applicant does not deserve any indulgence. In case the applicant is released on bail he will again indulge in similar activity.
I have considered the rival submissions advanced by learned counsel for the parties and perused the material available on record.
It is evident that on 28.8.2024 during search contraband was alleged to be recovered from the conscious possession of the applicant, which is more than commercial quantity. The accused was personally searched in the presence of Shri Karamveer Singh, Circle Officer, Sahsawa
So far as the contention of learned counsel for the applicant that the arresting officials did not comply with the mandatory provisions of search and seizure of narcotics substance as per the provisions of the NDPS Act is concerned, the Division Bench of Hon'ble the Apex Court in Criminal Appeal No. 5544 of 2024 (Special Leave Petition (Crl.) No. 12120 of 2024) Narcotics Control Bureau versus Kasif, decided on 20.12.2024 has held that sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone. The relevant portion of the aforesaid judgment is as under:-
"39. The upshot of the above discussion may be summarized as under:
(i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act.
(ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act.
(iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone.
(v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused.
(vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act."
In the light of the facts and circumstances of the present case, it would be inappropriate to discuss the evidence in depth at this stage because it is likely to influence the trial of the accused. But, from the perusal of the evidences, collected during investigation so far, prima facie, the involvement of the accused in the present case cannot be ruled out. No reason is found to falsely implicate the applicant/accused. Therefore, there is no good ground to release the applicant-accused on bail at this stage. All the contentions raised by the learned counsel for the applicant pertain to the merits of the case and the same cannot be considered while considering application for grant of bail. This court is unable to form an opinion at this stage that the accused has not committed an offence.
In the ultimate conclusion, considering the facts and circumstances of the case, gravity of the offence, severity of punishment, in my opinion, no case for bail is made out. Accordingly, the bail application is hereby rejected.
It is clarified that the observations made regarding the bail application is limited to the decision of the bail application and any observations made herein shall not effect the trial of the case.
Order Date :- 6.2.2025
Ravi Prakash
(Ashutosh Srivastava, J.)
