Allahabad High Court
Mohan Verma vs State Of U.P. on 21 August, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:167886 Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8447 of 2023 Applicant :- Mohan Verma Opposite Party :- State of U.P. Counsel for Applicant :- Devendra Vikram Singh,Adarsh Srivastava,Manoj Kumar,Reena Pal,Samarth Sinha,Sanjay Singh,Vijay Sinha Counsel for Opposite Party :- G.A. Hon'ble Vikram D. Chauhan,J.
1. Learned AGA for the State submits that instructions have been received in the case and the bail application may be heard. With the consent of learned counsel for the parties, the bail application is being heard at this stage.
2. Heard learned counsel for the applicant, learned AGA for the State and perused the record.
3. It is submitted by learned counsel for the applicant that the present bail application is the second bail application, the first bail application was rejected by this Court vide order dated 11.10.2022.
3A. Learned counsel for the applicant submits that after rejection of the first bail application the trial has proceeded with and the statement of the Sub-Inspector Ram Sanjeevan Yadav- PW.1 has been recorded who has stated that from the applicant, 8000 packets of smack was recovered. Learned counsel for the applicant disputed the aforesaid fact and submits that as per the first information report, recovery of 800 packets of smack has been shown. He further submits that instead of taking samples from all the packets, one common sample was prepared and sent to the Forensic Science Laboratory. Learned counsel for the applicant submits that the aforesaid procedure of sample is against law as the sample is required to be taken from each packet and separate samples are to be drawn in this respect otherwise the sample would not reflect the true position. Learned counsel for the applicant submits that the aforesaid fact has come into light after rejection of the first bail application. Applicant is languishing in jail since 26.12.2021.
4. Learned counsel for the applicant submits that the applicant has been falsely implicated. There is no independent witness of the alleged recovery. The alleged recovery has not been made in accordance with law. The recovery (including search and seizure) is in violation of the N.D.P.S Act and Criminal Procedure Code. The said search and seizure has not been made by person authorised or empowered under law. The applicant cannot be permitted to remain in jail as a punitive measure during trial. There was no drug testing kit or others measures with the officials at the time of recovery which could identify the alleged substance as a narcotic and psychotropic substance.
5. It is submitted that as per prosecution case, the abovementioned substance was recovered from public place, however there is no independent witness. It is further submitted by counsel for the applicant that there is no criminal history of the applicant.
6. Learned AGA for the State has opposed the bail application, however does not dispute the factual matrix. It is further submitted that recovery of abovementioned substance is below commercial quantity. It is further submitted that at the pre-trial stage, the innocence of applicant cannot be adjudged.
7. The right of an accused under the Constitution of India, more particularly under Article 21, do not stand superseded at pre-trial stage specifically when reasonable ground exists for grant of bail. It is settled law that deprivation of liberty may be considered a punishment unless it is required to ensure that an accused person will stand his trial when called upon. It is principle of law that every person is deemed to be innocent until duly tried and duly found guilty.
8. The alleged recovery is required to be established by the prosecution by cogent material. It is for the prosecution to show that the recovery and seizure is made in accordance with provisions of NDPS Act and Criminal Procedure Code.
(a) It is not the case of the opposite party/State that the search and arrest is being made in pursuance of a warrant issued by the Magistrate concerned authorised under law.
(b) No material has been produced by opposite party/State to demonstrate that the search and seizure of the narcotic substance has been made by an officer/person authorised or empowered under law.
(c) No particulars, material or circumstance has been shown to demonstrate that the officer concerned has reason to believe from personal knowledge or information given by any person and taken down in writing that offence under the NDPS Act is committed which lead to search, seizure or arrest.
(d) No document has been produced by the opposite party/State to show that grounds for believe that offence has been committed under the Act which is taken down in writing has been send to the immediate superior officer in accordance with law.
(e) There is no independent witness of the alleged search, seizure and recovery.
(f) In the present case as per the statement of the P.W.-1, 8000 packets of smack is alleged to have been recovered, however, the same as per the F.I.R. is 800 packets. Further, as per the statement of the P.W.-1, sample was not taken from all the packets and a common sample was prepared. It is to be seen that while adopting the procedure of sampling, the raiding authorities are required to prepare separate sample from each packet as a common sample would prejudice the right of the accused and then it would not be known as to how many packets contains contraband substance. In the present case, the sampling procedure is not in accordance with law as such, the applicant is entitled to be released on bail.
9. The presumption under Section 54 of the NDPS Act is applicable at the stage of trial and not at the pre-trial stage when the bail application is being considered. The recovery of the substance is below commercial quantity. Three Judges Bench of this Court in Tofan Singh Vs. State of Tamil Nadu, AIR 2020 SC 5592, has held that a confessional statement recorded under Section 67 of the NDPS Act to be inadmissible.
10. Learned AGA has not brought any fact or circumstances to indicate criminal history or antecedents of the applicant which would disentitle the applicant for Bail.
11. It is not the case of the State that the applicant has not cooperated in the investigation or proceedings before the trial court.
12. No material, facts or circumstances has been shown by learned AGA for the State that the accused may tamper with the evidence or witnesses or the accused is of such character that his mere presence at large would intimidate the witnesses or that accused will use his liberty to subvert justice or tamper with the evidence.
13. It is settled principle of law that the object of bail is to secure the attendance of the accused at the trial. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned AGA for the State.
14. Learned AGA for the State has not shown any material or circumstances that the accused/applicant is not entitled to bail in larger interests of the public or State.
15. Considering the facts and circumstances of the case, nature of offence, evidence, complicity of the accused, submissions of learned counsel for the parties and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
16. Let the applicant Mohan Verma involved in Case Crime No. 1754 of 2021, under Sections 8/20/21 of N.D.P.S., Police Station- Kotwali Nagar, District- Bulandshahr be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to 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 will appear before the trial court on the date fixed, unless personal presence is exempted and/or the applicant shall make himself available for interrogation by a police officer as and when required.
iv. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
v. 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.
vi. The applicant shall not leave India without the previous permission of the Court.
vii. In the event, the applicant changes residential address, the applicant shall inform the court concerned about new residential address in writing.
17. In case of breach of any of the above condition, the prosecution shall be at liberty to move bail cancellation application before this Court.
Order Date :- 21.8.2023 Sumit Kumar