Allahabad High Court
Mohd. Nawaz Khan vs U.O.I. Thru Intelligence ... on 1 October, 2020
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. 11 Case :- BAIL No. - 7379 of 2019 Applicant :- Mohd. Nawaz Khan Opposite Party :- U.O.I. Thru Intelligence Officer,N.C.B.,Lucknow Counsel for Applicant :- Anil Kumar Pandey Counsel for Opposite Party :- Shikha Sinha Hon'ble Rajeev Singh,J.
Heard learned counsel for the applicant and Ms. Shikha Sinha, learned counsel appearing for NCB.
The present bail application has been filed by the applicant in NCB Case Crime No. 14 of 2019, under Sections 8/21/29/27A of NDPS Act, Police Station NCB Lucknow, District Lucknow, with the prayer to enlarge him on bail.
The submissions of learned counsel for the applicant are that the applicant is innocent person and has been falsely implicated in the case, he is having no previous criminal history and in jail since 26.03.2019.
As per the prosecution case, on 26th March, 2019, at about 14.00 hrs., an information was received from Shri Birendra Kumar, Zonal Officer Director, NCB, Lucknow that three persons were carrying assignment of Heroin and Morphine through a car from Dimapur, Nagaland to Rampur, U.P. On the said information, a joint team of UPSTF and the officers of NCB, Lucknow moved to the spot, where at about 16.00 hrs., a suspected car coming from Barabanki was stopped and the three persons, those who were in the car, were identified as Rafiuddin, Arif Khan and Mohd. Nawaz Khan (applicant). During search, 3.300 kg. heroin was recovered from the wiper fitted at the front bonnet of the vehicle.
Learned counsel for the applicant submits that he is only a companion in the vehicle driven by Rafiuddin and the alleged contraband had allegedly been recovered from the wiper fitted on the front bonnet of the vehicle. It is further submitted by the learned counsel for the applicant that during the search of the applicant, only Rs.750/- and identity card along with mobile was recovered. Learned counsel for the applicant vehemently submits that the mandatory provisions of Sections 42 and 50 of NDPS Act were also not complied with, as the original information, which was received from Shri Birendra Kumar, was not reduced into writing and the copy of the same was not sent to the higher authorities within stipulated period.
Drawing the attention of the Court towards counter affidavit filed by Rameshwar Das, Intelligence Officer, NCB, Lucknow, learned counsel for the applicant submits that the according to Annexure No. 3 of the counter affidavit, statement of the applicant was recorded under Section 67 of the Act. Submission is that the officials prepared the said document (Annexure 3), i.e., the alleged statement of the applicant, as the applicant can read and write English only a little bit, and he is well conversant in Manipuri language. It is vehemently submitted by the learned counsel for the applicant that the said statement was never explained to the applicant, which is evident from the last page of the alleged statement, wherein Shri L.H. Kapin, who duly signed the said document, certified that the translation of the same has been explained in Manipuri language to Mohd. Arif Khan. It is, thus, submitted that the said statement was never explained to the applicant.
It is, thus, submitted that the applicant is entitled for bail. It is also submitted that the applicant will never misuse the liberty of bail and shall fully cooperate in the trial.
Ms. Shikha Sinha, learned counsel appearing for the respondent while opposing the prayer for grant of bail to the applicant, submits that the applicant is a facilitator and his involvement is also accepted by the co-accused. She further submits that the applicant was also in the said vehicle and was taken into custody along with other co-accused. She also submits that statement of the applicant under Section 67 of the Act was also recorded, but due to mistake, the officer, who explained and certified the same, has wrongly mentioned the name of Mohd. Arif Khan in place of the applicant. Ms. Shikha Sinha submits that the benefit of this impediment cannot be given to the applicant, as 3.300 kg. heroin was recovered from the wiper fitted on the front bonnet of the car. She also submits that as per the provisions of Section 37(1)(b) of the NDPS Act, no case for bail is made out. However, she concedes the fact that the vehicle was being driven by Rafiuddin and the applicant was sitting in the vehicle along with Arif.
Considering the rival submissions of learned counsel for parties, going through the recovery memo, alleged statement of the applicant recorded under Section 67 of the NDPS Act and the certification of Shri L.H. Kapin, it is evident that indisputably the alleged contraband was recovered from the wiper fitted on the front bonnet of the vehicle, which was being driven by Rafiuddin and the applicant was sitting in the said vehicle along with Arif Khan. Admittedly, nothing was recovered from the possession of the applicant. Further, in the search memo prepared by the officials, they categorically mentioned that since the persons were not well conversed with the Hindi or English language, Shri L.H. Kapin, personnel of SSB IV Battalion, Lucknow was requested to arrive on the spot for explaining the contents. A perusal of Annexure No. 3 of the counter affidavit goes to show that the name of the applicant is mentioned on the statement, but it also reveals that while certifying this statement, Shri L.H. Kapin mentioned in his certification that "Translated the statement as stated by Md. Arif Khan and after recording of stated read over the statement and made understand in Manipuri Language." Thus, since the statement was explained to Mohd. Arif Khan and not to the applicant as also that this statement was filed along with the complaint before the court below, oral argument of the learned counsel for the respondent, at this juncture, cannot be accepted that due to mistake, the name of Mohd. Arif Khan is mentioned in place of Mohd. Nawaz (applicant). It is also undisputed that the applicant does not have any criminal antecedent.
In view of above, the twin conditions contained under Section 37 (1)(b) of the NDPS Act stand satisfied. This Court is of the view that if there is reasonable ground, the applicant is entitled to be released on bail.
Let applicant - Mohd. Nawaz Khan be released on bail in NCB Case Crime No. 14 of 2019, under Sections 8/21/29/27A of NDPS Act, Police Station NCB Lucknow, District Lucknow, on his furnishing personal bond and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following conditions:-
(1) Applicant will not try to influence the witnesses or tamper with the evidence of the case or otherwise misuse the liberty of bail.
(2) Applicant will fully cooperate in expeditious disposal of the case and shall not seek any adjournment on the dates fixed for evidence when witnesses are present in the Court.
(3) Applicant shall remain present, in person, before the trial court on the dates fixed for (a) opening of the case, (b) framing of charge; and (c) recording of statement under Section 313 Cr.P.C.
(4) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
(5) The computer generated copy of such order shall be self attested by the counsel of the party concerned.
(6) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Any violation of above conditions will be treated misuse of bail and learned Court below will be at liberty to pass appropriate order in the matter regarding cancellation of bail.
Order Date:- 01.10.2020 VKS