Allahabad High Court
Azad vs State Of U.P. on 31 July, 2023
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:153414 Court No. - 75 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 16845 of 2023 Applicant :- Azad Opposite Party :- State of U.P. Counsel for Applicant :- Rajiv Kumar Mishra,Shashi Kant Counsel for Opposite Party :- G.A. Hon'ble Pankaj Bhatia,J.
Rejoinder affidavit filed today is taken on record.
Order on Bail
1. Heard learned counsel for the applicant as well as learned A.G.A. and perused the record.
2. The FIR in question was lodged alleging that on an information received, a search was carried out on 22.01.2023, in the said search, on a search of the applicant two mobile phones and Rs. 550 were recovered. Similar recoveries were made from the persons of other co-accused also. Subsequently, on the recovery of the Scooty of the applicant and the other vehicle Mahindra Pick up total 502 kg. and 300 gms. ganja allegedly recovered.
3. It is argued that by the counsel for the applicant that the search was allegedly carried out in the presence of a Gazetted Officer, however, the same has not been signed by the Gazetted Officer, thus, there is violation of Section 51 of NDPS Act read with Section 100 of Cr.P.C. He argues that even otherwise no independent witness has also signed on the search memo, as such, the entire search stands vitiated. He thus argues that the applicant should be enlarged on bail. He also argues that the applicant has no criminal antecedents. The counsel for the applicant has placed reliance on the order passed by this Court in the case of Wahid Ali Vs. N.C.B. in Crl. Misc. Bail Application No. 13590 of 2021, decided on 12.07.2023.
4. Learned A.G.A. vehemently opposed the bail prayer by arguing that huge quantity of ganja has been recovered from the conscious possession of the applicant and thus, the bail application should be rejected.
5. Considering the submissions made at the bar, this court while deciding the application in the case of Wahid Ali (supra) had considered the law laid down by the Supreme Court in the case of MohdMuslim@ Hussain vs State (NCT of Delhi); 2023 LiveLaw (SC) 260, wherein, the Supreme Court considered the scope of Section 37 and the twin conditions prescribed therein. The Supreme Court recorded in para no. 18 to 20 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 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.
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 v. Rattan Malik19). 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."
In the present case, prima facie, the mandate of Section 50 and 51 of the NDPS Act read with Section 100 Cr.P.C. has not been followed. The search memo has not been signed by either Gazetter Officer present or any independent witnesses. Thus, I have prima facie reasons to believe that the prosecution may not be able to prove the guilt. The said observations are tentative and will not prejudice the trial and are only for the purposes of deciding the present bail application. As the applicant has no criminal antecedents, in view of the law laid down in the case of Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra & Anr.: (2005) 5 SCC 294 I have reason to believe that applicant if enlarged on bail will not indulge in similar offence. Thus on both the ground, the applicant deserves to be enlarged on bail.
6. Accordingly, the bail application is allowed.
7. Let the applicant Azad be released on bail in FIR/ Case Crime No. 42 of 2023, under Sections 8/20 NDPS Act, P.S. Bita-second, District G.B. Nagar, 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 :- 31.7.2023 S.A.