Allahabad High Court
Amirullah @ Amir Musalman vs State Of U.P. on 17 January, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 84 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40635 of 2022 Applicant :- Amirullah @ Amir Musalman Opposite Party :- State of U.P. Counsel for Applicant :- Surendra Mohan Mishra,Vishveshwar Mani Tripathi Counsel for Opposite Party :- G.A. Hon'ble Sameer Jain,J.
1. Heard Sri Vishveshwar Mani Tripathi, learned counsel for the applicant and Sri Jhamman Ram, learned AGA, for the State.
2. The instant bail application has been moved on behalf of the applicant with the prayer to release him on bail in Case Crime No.145 of 2022 under Sections 8/22/23 NDPS Act, Police Station Mohana, District Siddharth Nagar during pendency of the trial.
3. According to the prosecution case, from the possession of applicant 410 capsule of windlas winspasma forte about 258.3 gm. was recovered.
4. Learned counsel for the applicant submitted that applicant is innocent and entire allegation made against him is totally false and baseless and in fact nothing incriminating has been recovered from his possession.
5. He next submitted that alleged capsule of windlas winspasma forte contain three drugs, namely, dicyclomine, tramadol and paracetamol and out of three drugs only tramadol is prohibited drug and commercial quantity of tramadol is 250gm. and if entire quantity is accepted then also only 8 gm.more than the commercial quantity was alleged to have been recovered from the possession of applicant. He further submits that at the time of alleged recovery mandatory provisions of Section 50 NDPS Act have not been complied with and this fact is evident from the recovery memo.
6. He next submits that no option was given to applicant whether he wants to be searched either before the Gazetted Officer or before the Magistrate. He further submits that applicant is not having any criminal history and he is in jail in the present matter since 7.7.2022.
7. Per contra, learned AGA opposed the prayer for bail and submits that total 258.3gm. prohibited drug was recovered from the possession of the applicant but he could not dispute the fact that the alleged recovered capsule contains three drugs and out of three drugs only tramadol is narcotic substance and commercial quantity of tramadol is 250gm. and therefore, only 8 grams more than commercial quantity of tramadol is said to be recovered from the possession of applicant.
8. Learned AGA also could not dispute the fact that in the recovery memo it is nowhere stated that option was given to applicant that he may give his search either before the Magistrate or before the Gazetted Officer.
9. I have heard learned counsel for the parties and perused the record of the case.
10. From the recovery memo it appears that no option was given to applicant with regard to his search either before a Magistrate or Gazetted Officer. Further, windlas winspasmo forte, the recovered capsule contains three drugs, namely, dicyclomine, tramadol and paracetamol and out of three only tramadol is a narcotics drug which is prohibited under the NDPS Act and commercial quantity of tramadol is 250gm and, therefore, only 8gm. more than commercial quantity is said to have been recovered from the possession of applicant.
11. Applicant is not having any criminal history and he is in jail in the present matter since 7.7.2022, therefore, considering the fact that prima facie it appears that there is non compliance of Section 50 NDPS Act and only 8gm. more than commercial quantity of tramadol is alleged to have been recovered from the possession of applicant, in my view, applicant is entitled to be enlarged on bail.
12. In the light of discussions made above, without expressing any opinion on the merits of the case, the instant bail application is allowed.
13. Let the applicant-Amirullah @ Amir Musalman be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted.
(ii) The applicant shall not directly or indirectly, make 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 any police officer or tamper with the evidence.
(iii) The applicant shall not indulge in any criminal and anti-social activity.
14. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.
Order Date :- 17.1.2023 SKM