Allahabad High Court
Vijay Prasad Alias Vijay Chauhan vs Union Of India on 19 September, 2025
Author: Santosh Rai
Bench: Santosh Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:169149
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION No. - 37736 of 2024
Vijay Prasad Alias Vijay Chauhan
.....Applicant(s)
Versus
Union of India
.....Opposite Party(s)
Counsel for Applicant(s)
:
Vijay Kumar Kashyap, Vikrant Rana
Counsel for Opposite Party(s)
:
Ashish Pandey
Court No. - 87
HON'BLE SANTOSH RAI, J.
1. Heard learned counsel for the petitioner and learned counsel for the respondent-N.C.B.
2. This second bail application has been moved on behalf of accused-applicant Vijay Prasad Alias Vijay Chauhan, seeking enlargement on bail in Sessions Trial No.24 of 2021 (State Vs. Malikhan Singh and Others) relating to NCB Crime No.18 of 2021, under Section 8/20/29 of N.D.P.S. Act, P.S. NCB Lucknow Occurrence Area, Salempur, District Deoria. First bail application of the applicant was rejected vide order dated 9.8.2023.
3. Learned counsel for the applicant argued that the accused-applicant is innocent and has been falsely implicated in this case. He has not committed any offence as alleged in the First Information Report. He is languishing in jail since 1.5.2021. It is stated in the FIR that 200 Kg ganja has been recovered from the joint possession of the accused applicant and other co-accused persons. It is submitted that the applicant is not the person who was driving the vehicle bearing Registration No. HR 55U 9113. It is submitted that the mandatory provisions of Sections 42(2), 50, 52A of the N.D.P.S. Act has not been complied with by the competent authority. It is further submitted that the co-accused persons Vinod Kumar Misra @ Vinod Mishra has already been enlarged on bail by this Court vide order dated 30.3.2022 passed in Criminal Misc. Bail Application No.50739 of 2021. It is argued that the trial proceeding is going on and three prosecution witnesses have already been examined in this case and the applicant has not created any kind of intervention in the trial proceeding. It is further argued that the applicant has no criminal history and there is no likelihood of his fleeing from course of justice or tampering with evidence in case of release on bail.
4. Learned counsel for the N.C.B. vehemently opposed the submission of the accused applicant and submits that 2400 Kg ganja has been recovered from the possession of the accused which is more than the commercial quantity. It is submitted that the provisions of Section 50 N.D.P.S. Act has been duly complied with by the authority in this case. It is further submitted that the bail application of the accused applicant has been rejected by this Court vide order dated 20.3.2023 passed in Criminal Misc. Bail Application No.5038 of 2023 and no new reliable and cogent ground is available to grant the second bail to the accused applicant. in this case. Learned counsel for NCB has further relied upon the judgment of Supreme Court in the case of Tarun Kumar Vs. Assistant Director Directorate of Enforcement 2023 INSC 1006 and Vanthala Murali Vs. Union of India in Special Leave to Appeal (Crl.) No(s).13520 of 2023 dated 19.10.2023.
5. Rule 9 and 10 of Ministry of Finance (Department of Revenue) Notification New Deli, the 23rd December, 2022 reads as under :-
"9. Samples to be drawn in the presence of Magistrate - After application to the Magistrate under sub-section (2) of section 52A of the Act is made, the Investigating Officer shall ensure that samples of the seized material are drawn in the presence of the Magistrate and the same is certified by the magistrate in accordance with the provisions of the said-sub-section.
10. Drawing the samples - (1) One sample, in duplicate, shall be drawn from each package and container seized.
(2)When the packages and containers seized together are of identical size and weight bearing identical marking and the contents of each package give identical results on colour test by the drugs identification kit, conclusively indicating that the packages are identical in all respects, the packages and containers may carefully be bunched in lots of not more than ten packages or containers, and for each such lot of packages and containers, one sample, in duplicate, shall be drawn:
Provided that in the case of ganja, poppy straw and hashish (charas) it may be bunched in lots of not more than fourty packages or containers.
(3) In case of drawing sample from a particular lot, it shall be ensured that representative sample in equal quantity is taken from each package or container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot."
6. Regarding bail application under N.D.P.S. Act, it is pertinent to mention Section 37 of N.D.P.S. Act. Section 37 of the N.D.P.S. Act reads as under:-
"37. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless-
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."
7. Thus, the conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is "not guilty of such offence" and that he is not likely to commit any offence while on bail, "not guilty" means that it can only be a prima facie determination.
8. In State of Punjab Vs. Baldev Singh 1999 (6) SCC 172 the Hon'ble Supreme Court held that the compliance of Section 50 N.D.P.S. Act is mandatory.
".....That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search......"
(2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused."
9. In the decisions in Pankaj Bansal v. Union of India 2024 (7) SCC 576, Prabir Purkayastha v. State (NCT of Delhi) 2024(8) SCC 254 and Vihaan Kumar v. State of Haryana AIR 2025 SC 1388, it has been held that the requirement of informing a person of grounds for arrest is a mandatory requirement of Article 22(1) and also that the information of the grounds for arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts confuting the grounds imparted and communicate to the arrested person effectively in the language which he understands.
10. Considering all above facts and circumstances, the nature of accusations, twin principles as laid down in Section 37 of N.D.P.S. Act in the light of role and involvement of accused coupled with no recovery, period of detention in jail, severity of the punishment, fact of no recovery from the possession of accused, nature of supporting evidence, reasonable apprehension of tampering with the witness and prima facie case, but without commenting on merit of case, a case for bail is made out.
11. Accordingly, the bail application is allowed.
12. Let the accused-applicant Vijay Prasad @ Vijay Chauhan involved in above mentioned case crime number be released on bail, on his executing a personal bond and two reliable heavy sureties each, in the like amount to the satisfaction of the court concerned, subject to the following conditions:
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in Court. In case of default of this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A I.P.C./269 B.N.S.
(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C./84 B.N.S.S. is issued and the applicants fail to appear before the Court on the date fixed in such proclamation then the Trial Court shall initiate proceedings against him in accordance with law under Section 174-A I.P.C./209. B.N.S.
(v) The applicant shall remain present in person before the Trial Court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C./351 B.N.S.S. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
13. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
14. Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
(Santosh Rai,J.)
September 19, 2025
RA
