Allahabad High Court
Hasim @ Lala vs State Of U.P. Thru. Secy. Home Lko. on 12 March, 2024
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:21666 Court No. - 12 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2276 of 2024 Applicant :- Hasim @ Lala Opposite Party :- State Of U.P. Thru. Secy. Home Lko. Counsel for Applicant :- Sunil Dixit,Sunil Kumar Awasthi Counsel for Opposite Party :- G.A. Hon'ble Pankaj Bhatia,J.
1. Counter affidavit filed today in Court is taken on record.
2. Heard learned counsel for the applicant as well as learned A.G.A. and perused the record.
3. The applicant seeks enlargement on bail in FIR No.757 of 2023, under Sections 8/21 of the NDPS Act, Police Station Fatehpur, District Barabanki.
4. In terms of the FIR, it was alleged that on the basis of a search carried out from the pocket of the applicant allegedly 255 grams of morphine was recovered, which was seized and a sample was drawn.
5. The contention of the Counsel for the applicant is that admittedly as per the FIR, the recovery was effect from the trouser worse by the applicant, as such, the mandate of Section 50 of the NDPS Act has to be followed, which has not been followed. The recovery is not in the presence of any independent witnesses. The mandate of Section 52-A of the NDPS Act with regard to the drawing of sample has not been followed and the applicant has no criminal antecedents, thus, he should be enlarged on bail.
6. Learned A.G.A. vehemently opposed the bail prayer by arguing that as the recovery was slightly above the commercial quantity, which is 250 grams in the case of morphine, the test of Section 37 of the NDPS Act has to be satisfied. She further argues that as per the FSL report, the sample sent was found to be heroin and, thus, the bail application should be rejected.
7. Considering the submissions made at the bar and the fact that the alleged recovery is more than the commercial quantity, the test of Section 37 of the NDPS Act has to be satisfied. The scope of Section 37 of the NDPS Act came up for interpretation before the Hon'ble Supreme Court in the case of Mohd Muslim @ Hussain v. State (NCT of Delhi); 2023 LiveLaw (SC) 260 wherein the Supreme Court has observed as under:
"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 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.
19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.
20. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused's guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India vs. Ratan Malik). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having 19 (2009) 2 SCC 624 regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail."
8. Considering the interpretation as recorded above by the Hon'ble Supreme Court and extracted above, in the present case, the recovery was from the pocket of the applicant and the mandatory requirement of Section 50 of the NDPS Act has not been followed and there are no independent witness to the search and the mandate of Section 52-A of the NDPS Act has also not been followed, thus, on these three grounds, prima facie, a view can be formed that the prosecution may not be able to justify the case because of the said deficiencies, as such, the first test prescribed under Section 37 is satisfied.
9. As regards the second of the twin test prescribed under Section 37 of the NDPS Act, admittedly the applicant has no criminal antecedents, as such, in view of the law laid down by the Hon'ble Supreme Court in the case of Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr.; (2005) 5 SCC, the second of the twin test is also satisfied. Thus, for both the reasons recorded above, the applicant, who is in custody since 03.12.2023, is entitled to be released on bail. Accordingly, the bail application is allowed.
10. Let the applicant Hasim alias Lala be released on bail in the aforesaid first information report number on his furnishing personal bonds and two reliable sureties of the like amount 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 :- 12.3.2024 akverma