Allahabad High Court
Abhishek Yadav vs State Of U.P. Thur. Secy. Home Lko. on 13 March, 2024
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:22044 Court No. - 12 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8255 of 2023 Applicant :- Abhishek Yadav Opposite Party :- State Of U.P. Thur. Secy. Home Lko. Counsel for Applicant :- Sudhir Kumar Rai,Amit Tewari,Rahul Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Pankaj Bhatia,J.
Heard learned counsel for the applicant as well as learned A.G.A. and perused the record.
Supplementary affidavit filed today is taken on record.
The applicant seeks enlargement on bail in FIR No. 77 of 2023, under Section 8/20 NDPS Act , Police Station Barasagwar District- Unnao.
In terms of the FIR, it was alleged that on the basis of information received, a team was constituted and, the said team apprehended a car bearing no. UP35 AB 2963 in which three persons named in the FIR were sitting. It is stated that on questioning, the three persons admitted that they were carrying ganja in the said car. Subsequently, it is noted that a gazetted officer was called and after giving an option to the applicants under Section 50 of the NDPS Act, search was conducted in the car in which two jute bags containing 11 packets each, total 22 packets, weighing total of 68.300 Kg,were found. It is stated that out of the 22 packets, from two (of the) packets were drawn and two 500 grams sample drawn, sealed and sent for verification as the applicants could not produce the license, they were apprehended. In the light of the said allegations, learned counsel for the applicant argues that the manner in which recovery has been effected from the car primarily does not disclose 'conscious possession' of the goods with the applicant, who had taken lift from the vehicle owner, as he is a student aged about 19 years. It is further argued that there are grave discrepancies in the FIR in terms of drawing the sample as allegedly 22 packets were recovered from two bags and samples were not drawn from each of the 22 packets which is contrary to the circular 1/88 and 1/89. It is further argued that even the manner in which sample was drawn is contrary to the mandate of Section 52-A of the NDPS Act. Reliance is placed upon the judgement of Hon'ble Supreme Court in the case of Union of India through Narcotics Control Bureau, Lucknow Vs. Md. Nawaz Khan reported in AIR Online 2021 SC 758:: AIR Online 2021 JHA 1078 as well as judgement in the case of Yusuf@Asif Vs. State, 2023 INSC 912 to impress that, the applicant could not be said to be in the conscious possession of the alleged contraband as explained in the case of Md. Nawaz Khan (supra). It is further argued that effect of not following the mandate of Section 52A was dealt with by the Hon'ble Supreme Court in the case of Yusuf@Asif Vs. State (supra).
He further argues that applicant has no criminal antecedents and is a student and he has to appear in the ensuing examination being conducted by the Public Service Commission for which an admit card has been issued to the applicant. It is lastly argued that the applicant is in custody since 01.06.2023 and the trial has not even started. Even the FSL report has not come so far and thus, the applicant who has no criminal antecedents should be enlarged on bail.
Learned A.G.A. vehemently opposed the bail prayer by arguing that the contraband in question was recovered from all the three persons sitting in the car, thus possession has to be treated jointly from all the said three persons, it is further argued that the due notice under Section 50 was given to the applicant as is noted in the FIR. He further argues that as the recovery is more than commercial quantity, the test of Section 37 has to be satisfied. It is further argued that the offence under NDPS Act effect the society at large and considering the quantum of recovery, the bail application should be rejected. He, however, does not oppose the assertion that the applicant has no criminal antecedents and also states that the FSL report is still awaited.
After hearing the learned counsel for the parties, as the alleged recovery is more than commercial quantity, the test of Section 37 has to be satisfied. Section 37 came up for interpretation before the Hon'ble Supreme Court in the case of Mohd Muslim @Hussain v. State (NCT of Delhi) 2023 SCC OnLine SC 352 wherein para 16, 17, 18 Hon'ble Supreme Court observed as under:
"16. In the most recent decision, Satender Kumar Antil v. Central Bureau of Investigation16 prolonged incarceration and inordinate delay engaged the attention of the court, which considered the correct approach towards bail, with respect to several enactments, including Section 37 NDPS Act. The court expressed the opinion that Section 436A17 (which requires inter alia the accused to be enlarged on bail if the trial is not concluded within specified periods) of the Criminal Procedure Code, 1973 would apply:
"We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code."
17. The facts in this case reveal that the recovery of ganja was made on 28.09.2015, from the four co-accused, including Nitesh Ekka. The present appellant was arrested at the behest, and on the statement of this Nitesh Ekka. The prosecution has relied on that statement, as well as the confessional statement of the present appellant; in addition, it has relied on the bank statements of Virender Singh @ Beerey, who allegedly disclosed that money used to be transferred to the appellant. As against this, the prosecution has not recovered anything else from the appellant; its allegation that he is a mastermind, is not backed by any evidence of extensive dealing with narcotics, which would reasonably have surfaced. The prosecution has not shown involvement of the appellant, in any other case. Furthermore, he was apparently 23 years of age, at the time of his arrest. It is an undisputed fact that two coaccused persons (who also, were not present at the time of raid and from whom no contraband was recovered) - the accused (Virender Singh @ Beerey) who allegedly transferred money to the appellant's account as payment for the ganja, and the accused (Nepal Yadav @ Tony Pahalwan) from whom the original insurance papers and registration certificate of the car from which contraband was seized, was recovered18 - have both been enlarged on bail. The appellant has been in custody for over 7 years and 4 months. The progress of the trial has been at a snail's pace: 30 witnesses have been examined, whereas 34 more have to be examined.
18. 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. What is meant by "not guilty" when all the evidence is not before the court? It can only be a 18 As per the counter-affidavit dated 21.02.2023 filed by the respondent-state before this court. prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co-operating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws ? be balanced against the public interest."
In the light of the scope of the Section 37 as explained by the Hon'ble Supreme Court in the case of Mohd Muslim (supra), to test the allegations in the present case, prima facie, as per the FIR, the recovery was effected from the car in which 3 persons including the applicant were sitting, the manner in which sample has been drawn, is prima facie contrary to the circular no.1/88 and 1/89 as the samples were not drawn from each of the 22 packets . Further, the madate of Section 52(a) was not followed,which can lead to the entire trial getting vitiated as held in para 16 of Yusuf@Asif Vs. State (supra). Thus, the manner of sampling and prima facie violation of Section 52(a) can clearly lead to forming a view that the prosecution may not be able to establish a case against the accused. Thus, the first test prescribed under Section 37 is satisfied. It is clarified that these findings are tentative for the consideration of the bail application and would not have any effect on the trial.
As regards the second test prescribed under Section 37, as the applicant has no criminal antecedents, the second of the twin test is also satisfied in favour of the applicant. Finding the two tests satisfied in favour of the applicant, coupled with the fact that no FSL report has come so far and thus there is no likelihood of trial being initiated or concluded in the near future, as such applicant who is a student with no criminal history is enlarged on bail. Accordingly, the bail application is allowed.
Let the applicant Abhishek Yadav be released on bail in the abovesaid first information report number on his furnishing personal bonds and two reliable sureties each to the satisfaction of the court concerned with the following conditions:
(a) The applicant shall execute a bond to undertake to attend the hearings;
(b) The applicant shall not commit any offence similar to the offence of which he is accused or suspected of the commission; and
(c) The applicant 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 :- 13.3.2024 Vipul