Allahabad High Court
Anil Gautam vs The State Of U.P. Thru.Prin.Secy. ... on 25 January, 2024
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:7467 Court No. - 12 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4003 of 2023 Applicant :- Anil Gautam Opposite Party :- The State Of U.P. Thru.Prin.Secy. Deptt. Of Home Lko. Counsel for Applicant :- Ranjeet Pratap Singh,Ashok Kumar Srivastava,Avinash Srivastava Counsel for Opposite Party :- G.A. A N D Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3855 of 2023 Applicant :- Manoj Pal Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Anand Kumar Yadav,Ashish Kumar Singh,Ashok Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Pankaj Bhatia,J.
1. Since both the cases arise out of same FIR number, they are being decided together.
2. Heard learned counsel for the applicants, learned AGA and perused the record.
2. The applicants seek enlargement on bail in FIR No.04 of 2023, under Section 8/20/29 of NDPS Act, P.S. Delhupur, District Pratapgarh.
3. In terms of the FIR, it was alleged that on the basis of a search carried on the vehicle being Car No.DL 3C BD 0777, three persons were found sitting on the car and on the search carried out in the car, 12 bundles of Ganja were recovered - the weight of the 12 bundles were different and is recorded in the FIR. It is argued that out of the 12 bundles, a sample was drawn and was mixed and total 50 gm of sample was sent for FSL examination. In short, allegedly 12 bundles of Ganja total weighing 50 kg were recovered from the car in which three persons including the applicants were sitting and out of the said 12 bundles, a common sample of 50 gm was drawn and was sent for examination.
4. In the light of the said, contention of learned counsel for the applicants is that allegedly from the joint possession of all the three persons, recovery of 50 kg of Ganja was alleged, however, there is no document or allegation that it was in conscious possession of the applicants. He further argues that the sampling in the manner it was done was contrary to the Standing Order Nos.1/88 & 1/89 as different samples ought to have been drawn from each of the bundles, which have not been done. It is further argued that the samples were not drawn in the presence of a Magistrate which is required under Section 52A of the NDPS Act. He further argues that the applicant namely Anil Gautam has no criminal history whereas the applicant namely Manoj Pal has a criminal history of an offence under the Gambling Act and not under NDPS Act, and thus, they should be enlarged on bail.
5. Learned counsel for the applicants places reliance on the judgment of the Supreme Court in the case of Yusuf v. State; Criminal Appeal No.3191 of 2023 decided on 13.10.2023 as well as in the case of Bothilal v. The Intelligence Officer Narcotics Control Bureau; Criminal Appeal No.451 of 2011 decided on 26.04.2023.
6. Learned AGA, on the other hand, strongly opposes the bail application by arguing that from the conscious possession of the three persons including the applicants, 50 kg of Ganja was recovered which is more than commercial quantity and thus, in view of the bar prescribed under Section 37 NDPS Act, the bail applications deserve to be rejected.
7. Considering the submissions made the Bar, although it is well settled that there is no requirement of observance of Section 50 NDPS Act when the recovery is not affected from the person, in view of the law as explained in the case of Ranjan Kumar Chadha v. State of Himachal Prades; 2023 SCC OnLine SC 1262, primarily, the argument in respect of not following the mandate of Section 50 NDPS Act deserves to be rejected.
8. As regards the manner in which the sampling has been drawn, clearly the mandate of Section 52A of the NDPS Act has not been followed in the present case. The effect of not following Section 52A of the NDPS Act in letter and spirit was considered by the Supreme Court in the case of Yusuf (supra) and in Para - 16 the following has been held :
"16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated."
9. The Supreme Court had the occasion to consider the earlier judgment in the case of Union of India (UOI) v. Mohanlal and Ors.; MANU/SC/0073/2016.
10. In view of the said decision of the Supreme Court in the case of Yusuf (supra), primarily, in the present case, there is non compliance of Section 52A of NDPS Act, as such, this Court can form a view that on the basis of the sampling, the prosecution may not be able to establish the guilt of the applicant.
11. Considering the law with regard to scope of Section 37 NDPS Act as explained in the case of Mohd Muslim @ Hussain v. State (NCT of Delhi); 2023 LiveLaw (SC) 260, a prima-facie view can be formed that the prosecution may not be able to establish the offence against the applicants, as such, the first of the twin conditions under Section 37 NDPS Act stands satisfied in favour of the applicants.
12. As regards the second of the twin conditions prescribed under Section 37 of NDPS Act, as the applicant namely Anil Gautam has no criminal antecedent of an offence under the NDPS Act, in view of the law as explained in the case of Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr.; (2005) 5 SCC 294, the second of the twin conditions also stands satisfied.
13. As regards applicant namely Manoj Pal, as the said applicant does not have any criminal antecedent under NDPS Act, the second of the twin conditions prescribed under Section 37 NDPS Act stands satisfied in his case also.
14. In view of the above, the applicants are entitled to be enlarged on bail. In view thereof, the application is allowed.
15. Let the applicants Anil Gautam and Manoj Pal be released on bail in aforesaid FIR number on their furnishing a personal bond with two sureties of the like amount each separately to the satisfaction of court concerned with the following conditions:
(a) The applicants shall execute a bond to undertake to attend the hearings;
(b) The applicants shall not commit any offence similar to the offence of which they are accused or suspected of the commission; and
(c) The applicants shall not directly or indirectly make any 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 to any police officer or tamper with the evidence.
Order Date :- 25.1.2024/nishant