Muslim Raza vs State Of U.P. And Another
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Allahabad High Court

Muslim Raza vs State Of U.P. And Another on 30 July, 2025

Author: Krishan Pahal

Bench: Krishan Pahal

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:126506
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8089 of 2025
 

 
Applicant :- Muslim Raza
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Ali Hasan,Istiyaq Ali
 
Counsel for Opposite Party :- G.A.,Krishna Agarawal
 

 
Hon'ble Krishan Pahal,J.
 

1. List has been revised.

2. Heard Sri Istiyaq Ali, learned counsel for applicant, Sri Krishna Agarwal, learned counsel appearing for CBN and Sri Sunil Kumar, learned A.G.A. for the State.

3. The present bail application has been filed by the applicant in Case Crime No.04 of 2022, under Sections 8/21 N.D.P.S. Act, Police Station- C.B.N., District- Bareilly with the prayer to enlarge him on bail.

4. This is the second bail application on behalf of the applicant. The first bail application was rejected by this Court vide order dated 16.5.2024 passed in Criminal Misc. Bail Application No.51993 of 2022 and the following orders were passed:-

"1. Supplementary affidavit filed today by the learned counsel for the applicant is taken on record.

2. Heard Sri Istiyaq Ali, learned counsel for the applicant and Sri Krishna Agarawal, learned counsel for the CNB and also perused the material available on record.

3. Applicant seeks bail in Case Crime No. 04 of 2022, under Sections 8/21 of NDPS Act, Police Station ? C.B.N., District - Bareilly, during the pendency of trial.

4. Facts, in brief, giving rise to the instant application are that on the basis of information received through a squealer by the Officials of Central Narcotics Bureau, Bareilly, the applicant was intercepted by them and he was informed about the procedure of search and the provisions of Section 50 of NDPS Act which pertains to his right to be searched in the presence of Gazetted Officer/ Magistrate. The applicant is stated to have consented to be searched by Sub-Inspector himself. In all 280 grams of "Morphene" was recovered from the possession of the applicant being concealed in by fixing tape to his right leg. The said recovery was made at about 12 hours on 01.08.2022. The sample was drawn from the said contraband and the information was given to Senior Officers of the Department. All the formalities were completed at the office of C.N.B.

5. Learned counsel for the applicant has stated that he has been falsely implicated in the instant case. He has nothing to do with the said offence as alleged in the FIR. There is no independent witness of the said recovery while the recovery memo itself indicates that several persons had converged at the place of recovery but no attempt was made by the Officials of the C.N.B. to furnish independent witness. It is further stated that there is no compliance of mandatory provisions of Sections 50 & 52-A of NDPS Act. Even the applicant himself is a handicapped person having 40% disability.

6. It is also stated that criminal history of two cases i.e. Case Crime No. 104 of 2022, u/s 8/21 of NDPS Act, P.S. - Binawar, District- Badaun and Case Crime No. 106 of 2022, u/s 4/25 of Arms Act, P.S. Binawar, District- Badaun, assigned to the applicant has been explained in para-9 of the rejoinder affidavit filed on 26.07.2023. In both the cases, the applicant is on bail.

7. Learned counsel for the applicant has placed much reliance upon the judgement of Supreme Court passed in Mohd Muslim @ Hussain vs. State (NCT of Delhi) reported in 2023 SCC OnLine 352, wherein it has been opined that in the case of Special Acts, the Authorities do carry special powers, as such, they carry onerous duty to take care of the fundamental rights of the person facing trial and should take utmost care in getting the trial disposed of expeditiously.

8. It is further stated that in the instant case, no witness has been examined to date as only charge has been framed. The fundamental rights of the applicant enshrined under Article 21 of the Constitution of India stand violated.

9. Per contra, learned counsel for the Department has fairly conceded the fact that no witness has been examined to date but states that every endeavour shall be taken by the Department to conclude it in near future. The applicant has criminal antecedents that too under the NDPS Act, as such, the rigors of Section 37 of NDPS Act shall be applied to him as he himself repeated the offence under the NDPS Act. The recovered contraband is of commercial quantity.

10. Learned counsel for the Department has relied upon the judgements of Supreme Court passed in Union of India Vs. Rattan Mallik @ Habul, (2009) 2 SCC 624 and State of Punjab Vs. Makhan Chand (2004) 3 SCC 453 and the judgement of this Court passed in Brijesh Singh Vs. Union of India, 2023:AHC:187202.

11. After hearing the parties and taking into consideration the fact that the applicant has criminal history of one more case of NDPS Act coupled by the fact that the recovered contraband is of commercial quantity, I do not find it a fit case to enlarge the applicant on bail at this stage.

12. The bail application of the applicant is, accordingly, rejected."

5. Learned counsel for the applicant has stated that it is a case where the infringement of personal liberty of the applicant as enshrined under Article 21 of the Constitution of India has been done. He is languishing in jail since 2.8.2022, as such, he is incarcerated in jail for a period of about three years.

6. Learned counsel for the applicant has placed much reliance on the judgment of the Supreme Court passed in the case of Union of India vs. K.A. Najeeb, AIR 2021 SC 712, wherein it has been observed as under:-

"We are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail."

7. It is further argued by learned counsel for the applicant that the charge could be framed on 11.4.2023 only and the prosecution witnesses PW-1 and PW-2 only have been examined during trial. As such, the applicant is entitled for bail as there is no no likelihood of conclusion of trial in near future. Learned counsel has stated that one case under NDPS Act is pending against the applicant but the said case was regarding contraband which is below the commercial quantity. He is ready to cooperate with trial. In case, the applicant is released on bail, he will not misuse the liberty of bail.

8. Per contra, learned counsel apearing for CBN and learned A.G.A. have vehemently opposed the bail application on the ground that the applicant moved an application under Section 311 Cr.P.C. to recall the witness on 19.7.2024 and the same was allowed and the cross-examination could be completed on 21.7.2025 itself, as such, the delay, if any, cannot be attributed to the department rather it was the applicant who is responsible for the delay in conclusion of trial as the counsel of the applicant did not take up cross-examination of the witness.

9. Learned counsel appearing for CBN has further argued that the applicant has previous criminal history of one case under NDPS Act, as such, he is a habitual offender and the contraband recovered in the instant case is of commercial quantity. As such, the applicant is not entitled for bail.

10. After hearing learned counsel for the parties and taking into consideration the fact that applicant has previous criminal history under NDPS Act coupled by the fact that contraband recovered in the instant case is of commercial quantity, I do not find it a fit case for grant of bail to the applicant.

11. The bail application is found devoid of merits and is, accordingly, rejected.

12. However, it is directed that the aforesaid case pending before the trial court be decided expeditiously in view of the principle as has been laid down in the recent judgments of the Supreme Court in the cases of Vinod Kumar vs. State of Punjab; 2015 (3) SCC 220 and Hussain and Another vs. Union of India; (2017) 5 SCC 702, if there is no legal impediment.

13. 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 :- 30.7.2025

Vikas

(Justice Krishan Pahal)