Allahabad High Court
Adnan vs State Of U.P. on 2 September, 2020
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 32 Case :- BAIL No. - 3083 of 2020 Applicant :- Adnan Opposite Party :- State of U.P. Counsel for Applicant :- Amrit Kumar Tiwari,Anil Kumar Pandey Counsel for Opposite Party :- Govt. Advocate Hon'ble Mohd. Faiz Alam Khan,J.
Heard learned counsel for applicant as well as learned Additional Government Advocate for the State through video conferencing and perused the record.
This bail application has been moved by the accused/applicant Adnan for grant of bail, in Case Crime No.59 of 2020, under Sections 8/21 of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "N.D.P.S.Act"), Police Station Masauli, District Barabanki.
Learned counsel for applicant while pressing the bail application submits that the applicant, who is the student of LL.B.final year, has falsely been implicated in this case and no offence, as claimed by the prosecution, has been committed by him.
It is further submitted that a false recovery of 280 gms. diacetyl morphine (heroin) is stated to have been recovered from the possession of the applicant. However, the recovery is patently false as no public witness of the recovery has been made.
It is further submitted that the arresting party has not complied with the provisions of Sections 42 and 50 of the N.D.P.S. Act and any recovery which has been made in violation of these provisions is vitiated.
It is further submitted that even if the case of the prosecution is taken on its face, it is stated in the recovery memo that the contraband has been weighed along with its wrapper and also weighing has not been done on any electronic scale, therefore, there is always a margin of error if the contraband like heroin is weighed by indigenous scale and, therefore, the quantum recovery as shown by the prosecution could not be believed.
It is further submitted that co-accused of the alleged crime, namely, Ikram and Mohd.Ishraq from whom 400 gms. and 270 gms. of diacetyl morphine (Heroin) has been allegedly recovered, have been released on bail by co-ordinate Benches of this Court vide orders dated 05.08.2020 and 24.07.2020, passed in Bail No.4028 of 2020 and Bail No.4945 of 2020, respectively.
It is further submitted that accused applicant is in jail in this matter since 04.03.2020 and is having no criminal antecedents and there is no apprehension that after being released on bail he may flee from the course of law or will otherwise misuse the liberty and he will cooperate in the trial as the charge sheet has already been filed.
Learned A.G.A, however, opposes the prayer of bail of the applicant on the ground that the recovery of heroin from the possession of the applicant is of commercial quantity and having regard to the twin conditions contained in Section 37(1)(b) of N.D.P.S. Act, the applicant is not liable to be released on bail.
Having heard learned counsel for parties and having perused the record, it appears that morphine of 280 gms. is alleged to have been recovered from the possession of the applicant which is slightly more than the minimum commercial quantity i.e. 250 gms. It has been overwhelmingly submitted by learned counsel for applicant that the allegedly recovered contraband has been weighed along with its wrapper and, therefore, the weight which has been shown in the recovery memo could not be believed. It is also stated that the allegedly recovered contraband has not been weighed by electronic scale and the mandatory provisions of Sections 42 and 50 of the N.D.P.S. Act have not been complied rendering the recovery as vitiated. Co-accused of the crime from whom recovery of 400 gms. and 270 gms. of heroin is shown to have been effected, have been released by co-ordinate Benches of this Court.
In view of above facts and circumstances, in the considered opinion of this Court, the satisfaction as desired by Section 37(1)(b) of N.D.P.S. Act stands satisfied.
Having regard to all the circumstances and keeping in view the nature of offence, evidence in support of accusation, complicity of accused, without expressing any opinion on the merits of the case, I am of the considered view that the applicant has made out a case for bail. The bail application is thus allowed.
Let the accused-applicant/Adnan involved in aforesaid case be released on bail on his furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:-
(i) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial.
(ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.
(iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
(iv) The applicant may file computer generated copy of this order, self attested by his counsel, which may be downloaded from the official website of High Court Allahabad.
(v) The concerned Court/Authority/Official before accepting such computerized copy as genuine shall verify the authenticity of the order from the official website of High Court Allahabad and also keep in mind following directions issued by a Division Bench of this Court vide order dated 06.04.2020 passed in Suo Moto PIL 564 of 2020, a copy of which has already been communicated to all the Courts below:-
"we deem it appropriate to order that all the accused-applicants whose bail applications came to be allowed on or after 15th March, 2020 but have not been released due to non-availability of sureties as a consequence to lock-down may be released on executing personal bond as ordered by the Court or to the satisfaction of the jail authorities where such accused is imprisoned, provided the accused-applicants undertakes to furnish required sureties within a period of one month from the date of his/her actual release."
(vi) Office is also directed to send a computerized copy of this order to the District Judge Concerned through email or fax as the case may be, forthwith.
Observations made by this Court herein above are only for the purpose of disposal of this bail application and will not having any bearing on the final outcome of the case.
Order Date :- 2.9.2020 Irfan