Allahabad High Court
Mahrun vs State Of U.P. on 10 September, 2025
Author: Krishan Pahal
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:160105
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION No. - 26761 of 2025
Mahrun
.....Applicant(s)
Versus
State of U.P.
.....Opposite Party(s)
Counsel for Applicant(s)
:
Ali Hasan, Istiyaq Ali
Counsel for Opposite Party(s)
:
G.A.
Court No. - 67
HON'BLE KRISHAN PAHAL, J.
1. List has been revised.
2. Heard Sri Istiyaq Ali, learned counsel for the applicant, Sri Rajendra Prasad Singh, learned State Law Officer for the State and perused the material placed on record.
3. Applicant seeks bail in Case Crime No.132 of 2025, under Section 8/21/29 of The Narcotic Drugs And Psychotropic Substances Act, 1985, Police Station- Nakur, District Saharanpur, during the pendency of trial.
4. Learned counsel for the applicant has argued that the applicant is absolutely innocent and has been falsely implicated in the present case with a view to cause unnecessary harassment and to victimize him. A false recovery of 560 grams of Smack has been foisted on the applicant. It is true that the said contraband falls in the category commercial quantity, but the applicant has nothing to do with the said offence.
5. Learned counsel for the applicant has placed reliance on paragraph nos.15, 24 and 24 of the judgment of Supreme Court passed in Nadeem Ahamed vs. State of West Bengal, 2025 SCC OnLine SC 1779, which are being reproduced as under:-
" 15. Learned counsel for the accused-appellant has advanced the following arguments to challenge his conviction:?
i). That there was a total non-compliance of the mandatory provisions of NDPS Act in conducting the search and seizure.
ii). That the search and seizure proceedings are full of contradictions and inherent improbabilities and the same do not inspire confidence.
iii). That the prosecution case is vitiated because the seizure officer (PW-2) failed to comply with the mandate of Section 52A of the NDPS Act, inasmuch as neither were samples drawn in presence of a Magistrate, nor was any inventory prepared as per the requirement of law.
iv). That the trial Judge committed a grave error in holding that the recovered contraband weighed more than the commercial quantity. In this regard, it has been fervently contended that there is no evidence on record to show that the accused-appellant and the co-accused were known to each other from before, or that either of them had the prior knowledge of the contraband allegedly possessed by the other.
24. Rather, upon going through the judgment of the trial Court, we find that, without there being any such evidence, the trial Court simply raised a presumption as to the culpable mental state by proceeding on an assumption that both the accused were conscious and aware of the contents of the packets stashed on the other's person. Such assumption is erroneous and absolutely unjustified on the face of the record for want of evidence to substantiate the same. Reference in this regard can be made to the judgment of this Court in the case of Amarsingh Ramjibhai Barot v. State of Gujarat, 2005 7 SCC 550. The relevant observations from the aforesaid judgment are reproduced below:?
?7. The learned counsel appearing for the appellant urged only one contention in support of the present appeal. He contended that the High Court fell into an error in taking the total quantity of the offending substances recovered from the two accused jointly and holding that the said quantity was more than the commercial quantity, warranting punishment under Section 21(c) of the NDPS Act. He contended that as far as the appellant is concerned, the High Court erred by assuming that there was criminal conspiracy within the meaning of Section 29 of the NDPS Act, and erroneously proceeded under the said section. The High Court fell into a further error of assuming that because Section 29 was applicable, the total quantity of opium recovered was 920 grams plus 4.250 kg. The counsel urged that because of this error the High Court took the wrong view that the total opium recovered was of ?commercial quantity? and, therefore, attracted Section 21(c) of the NDPS Act.
8. Although, at first blush, the argument of the learned counsel appeared attractive, on careful appreciation of the facts on record we are satisfied that the High Court judgment is fully justified and needs to be upheld. It is true that the High Court proceeded on the footing that there was a criminal conspiracy between the appellant and the deceased Danabhai Virabhai Rabari. In our view, however, there was no warrant for this conclusion at all as there is no evidence to suggest that there was any such abetment and/or criminal conspiracy within the meaning of Section 29 of the NDPS Act. The appellant and Danabhai Virabhai Rabari were found together, but individually carrying the recovered substances. Hence, it was not possible for the High Court to take the view that Section 29 was attracted.?
25. Therefore, we have no hesitation in holding that the trial Court committed a grave factual error in concluding that the contraband heroin recovered from two distinct individuals could be clubbed together, so as to be covered under the commercial quantity (above 250 gms.)."
6. Learned counsel for the applicant has further stated that there is no compliance of mandatory provision of Section 52-A of the N.D.P.S. Act. There is no criminal history of the applicant. The applicant is languishing in jail since 03.05.2025. In case, the applicant is released on bail, he will not misuse the liberty of bail.
7. Learned State Law Officer has vehemently opposed the bail application on the ground that the recovery of the contraband article is of commercial quantity.
8. The Apex Court in the Case of Union of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798 has held that the court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.
9. Considering the facts of the case and keeping in mind, the ratio of the Apex Court's judgment in the case of Union of India vs. Shiv Shankar Keshari (supra) larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/ State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. The bail application is allowed.
10. Let the applicant- Mahrun, who is involved in aforementioned case be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified. (i) The applicant shall not tamper with evidence during trial. (ii) The applicant shall not pressurise/intimidate with the prosecution witnesses. (iii) The applicant shall appear before the trial court on the date fixed.
11. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
12. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
(Krishan Pahal,J.)
September 10, 2025
(Ravi Kant)
