Allahabad High Court
Mohd. Taarik vs Narcotics Control Bureau Mahanagar ... on 23 January, 2024
Author: Karunesh Singh Pawar
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:6343 Court No. - 14 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5598 of 2021 Applicant :- Mohd. Taarik Opposite Party :- Narcotics Control Bureau Mahanagar Lko. Counsel for Applicant :- Rajiv Kumar Bajpai,Shanker Lal Pandey Counsel for Opposite Party :- Akhilesh Kumar Awasthi Hon'ble Karunesh Singh Pawar,J.
Heard learned counsel for the applicant and Sri Akhilesh Kumar Awasthi, learned counsel for N.C.B. as well as perused the record.
The present bail application has been filed by accused-applicant seeking bail in Case Crime No.07 of 2021, under Sections 8/20, 29 & 63 N.D.P.S. Act, P.S. N.C.B. Lucknow, District Lucknow.
As per prosecution story, Zonal Intelligence Office of the N.C.B. received an information through a informer that four persons namely, the Raj Kumar Gupta, Mohd. Taarik (applicant), Mohd. Rashid @ Lallu and Mohd. Shamshad Quraishi are involved in the drug trafficking of ganja in the area of Sultanpur and Pratapgarh, and by taking the said contraband from Raipur, Chattisgarh, the four persons are coming to supply it on various places. The said information was supplied to Vishal Pawar, Superintendent, N.C.B., Lucknow. On the instructions of Superintendent, a team was constituted to apprehend the said persons. At about 8.30 pm, two vehicles Scorpio no. UP 44 AK 8886 and Indica Car MP 09 CG 7896 were intercepted by the police in the presence of two independent witnesses. The said Scorpio no. UP 44 AK 8886 was being driven by Rajkumar Gupta, while the co-accused Mohd. Shamshad Quraishi was sitting on the rear seat therein. 45 kg of ganja was recovered in a bag in a specially altered diggi of the said Scorpio and 50 kg of ganja is said to have been recovered from the said Indica car which was being driven by Mohd. Tariq (applicant). While Mohd. Rashid @ Lallu was sitting on the rear side therein. The said contraband was tested by the DD Kit. The result of the said test was positive for ganja. The said Scorpio was found registered in the name of Arif Quraishi S/o Shamshad Quraishi. The sample from the said contraband was drawn in the court of the Magistrate concerned on 14.2.2021.
Learned counsel for applicant submits that although recovery memo as alleged was prepared in presence of gazetted officer however, it has not been signed by him which prima facie shows that there is no compliance of Section 50 of the Act as the seizure memo was not signed by the gazetted officer which makes his presence doubtful. Till date only a single prosecution witness could be examined namely, Surendra Kumar and prosecution witnesses are absent on most of the dates before the trial court thus, has been taken notice by the Co-ordinate Bench of this Court while grating bail to the co-accused Rashid @ Lallu. He then submits that co-accused Rashid @ Lallu has been enlarged on bail by the Co-ordinate Bench of this Court vide order dated 21.07.2023 passed in Criminal Misc. Bail Application No.4248 of 2021. The other co-accused persons namely, Raj Kumar Gupta and Shamsbad have also been enlarged on bail by Co-ordinate Bench of this Court vide orders dated 27.10.2023 & 27.07.2023 passed in Criminal Misc. Bail Application Nos.11600 of 2023 & 5597 of 2021 respectively. The role assigned to the co-accused persons is similar to that of the role assigned to the present applicant. He claims parity to the bail orders or the aforesaid co-accused persons.
Sri Akhilesh Kumar Awasthi, learned counsel for the N.C.B. has opposed the bail application however, could not dispute the fact that role assigned to this applicant is similar to the co-accused Rashid @ Lallu.
On due consideration to the judgment of Co-ordinate Bench of this Court passed in Wahid Ali vs. N.C.B. decided on 12.07.2023 passed in Criminal Misc. Bail Application No.4248/2021; admitted fact between the parties that signatures on the seizure memo and the fact that gazetted officer has not signed the seizure memo which makes the alleged illegal possession under Section 8 of the N.D.P.S. Act doubtful so also considering the judgment of Supreme Court in the case of Mohd. Muslim @ Hussain vs. State (NCT of Delhi) reported in [2023 LiveLaw (SC) 260], prima facie, I am of the opinion that in absence of valid order of seizure, prosecution may not be able to prove the guilt of possession of the alleged ganja hence first condition under Section 37 is satisfied coupled with the fact that since applicant has no prior criminal history which is a guiding factor to form the view that applicant will not be engaged in similar offence in future since in the present case applicant has no criminal history therefore, this Court is of the view that if applicant is enlarged on bail, applicant will not commit the same offence in future and the second condition under Section 37(1)(b)(ii) of the N.D.P.S. Act is also satisfied and having satisfied the twin conditions as recorded above, applicant, who is in custody since 14.02.2021 so also considering the above judgments of the Co-ordinate Bench of this Court as well as Supreme Court, co-accused Rashid @Lallu has been enlarged on bail, without expressing any opinion on merits of the case, I find it to be a fit case for enlarging the applicant on bail.
Accordingly, the bail application is allowed.
Let the applicant Mohd. Taarik be released on bail in aforesaid case crime number subject to his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions:
(i) The applicant will not tamper with the evidence during the trial.
(ii) The applicant will not pressurize/ intimidate the prosecution witness.
(iii) 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.
(iv) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(vi) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
Order Date :- 23.1.2024 Saurabh Yadav/-