Allahabad High Court
Kadir Khan vs State Of U.P. on 25 July, 2023
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:148764 Court No. - 75 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25817 of 2023 Applicant :- Kadir Khan Opposite Party :- State of U.P. Counsel for Applicant :- Sandeep Pandey Counsel for Opposite Party :- G.A. Hon'ble Pankaj Bhatia,J.
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 on the basis of a recovery. In the FIR it is alleged on the basis of information received that huge quantity of ganja is being transported through truck bearing No. MP 13 H 0974, a team was constituted and truck was apprehended. It is stated that in the said truck two persons namely Govind and Jameel Khan admittedly carrying ganja in the truck in question which was concealed below the insecticides. It is stated that the said two persons offered to get their search conducted in the presence of a Gazetted Officer, to which they agreed. In terms of the said agreement, the Circle Officer was requested to come, on coming, the said two persons were searched in person, in their personal search nothing was found and subsequently the truck in question was searched, in which 40 bags of ganja secretly as were concealed under insecticides. It is on record that from each of the said bags, 10 gms. samples each was taken up and was sent for FSL. The applicant is the owner of the truck in question, he has been apprehended on the statement of the said two persons who stated that they were indulging in carrying the drugs along with the applicant who is the owner of the truck. In view of the said statement, the applicant is in custody since 23.05.2023.
3. Counsel for the applicant argued that nothing has been recovered from the applicant and name of the applicant has been taken up by the said two persons in their statements made under Section 67 of the NDPS Act which is not admissible in evidence in view of the law laid down in the case of Tofan Singh Vs. State of Tamil Nadu (2021) 4 SCC 1. He further argued that admittedly the search was conducted from the persons also and thus, it was mandatory for the respondents to have followed the mandate of Section 50 of the NDPS Act which has not been followed to the said submission, he places reliance on the judgment of the Apex Court and argues that even the said Gazetted Officer has not signed the recovery memo as such the entire search becomes arbitrary.
4. He places reliance on an order passed by this Court in Crl. Misc. Bail Application No. 13590 of 2021 (Wahid Ali Vs. N.C.B.), wherein, in similar circumstances, the Gazetted Officer had not affixed his signature. This Court considered the mandate of Section 50 and 51 NDPS and Section 100 Cr.P.C. and found that not affixing signature clearly vitiates the search and renders the entire prosecution story suspicious. He further argues that the drawing of 10 gms. of sample was clearly not in terms of the mandate of the circulars prescribing the manner in which the samples are withdrawn. He specifically relies upon Circular No. 1 of 1988 to argue that the manner of one sample and the quantity of samples are clearly prescribed have not been followed. He further argues that the FSL in its report which is contained in annexure no. 5 to the bail application records that the 10 gms. sample sent by the raiding party was returned by the FSL by observing that they should send sample of 24 gms. It is also recorded that the signatures affixed were illegible. It is argued in response to the said letter of the FSL, fresh samples of 24 gms. were sent after about one month on 14.07.2023 as is clear from perusal of annexure-6. He argues that the samples of 24 gms. were neither drawn in the presence of applicant nor in the presence of any Magistrate and thus, the manner of sampling is not only contrary to the circulars, it is also renders the same to be suspect. In light of the said, he argued that applicant should be enlarged on bail, moreso, when recovery has been affected from the applicant.
5. Learned A.G.A. on the other hand vehemently opposed the bail prayer by arguing that a huge recovery is affected at the instance of the said two persons, who had also taken the name of the applicant, who is the owner of the truck. It is further argued that it is well settled that test specified under Section 37 has to be satisfied before any bail can be granted.
6. Section 37 of the Act prescribes for twin test under Section 37(b)(ii) as regards the first test that there is a reasonable ground for holding that the accused may not be guilty, a strong reliance is placed upon the judgment of the Supreme Court in the case of MohdMuslim@ Hussain vs State (NCT of Delhi); 2023 LiveLaw (SC) 260, wherein, the Supreme Court held the scope of Section 37 and recorded 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."
7. Considering the law laid down and explained by Supreme Court in the case of Mohammad Muslim (supra) considering with the mandate of chapter V, clearly the recovery from the said two persons in the truck is not in terms of the mandate of Section 50, 51 NDPS and Section 100 of Cr.P.C. as there are no signatures of the Gazetted Officer affixed. The applicant has been implicated solely based upon the statement of the accused under Section 67 which is not admissible in evidence in view of law laid down by the Supreme Court in the Case of Tofan Singh (supra). Thus, the recovery not being in accordance with law, I have reasons to believe that the accused may not be held to be guilty in trial as regards the second condition of the twin conditions of Section 37, it appears from the record that the applicant does not have any criminal antecedents prior to the offence in question as such, 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 reasons to hold that the accused will not commit the same offence again. Thus, the twin conditions as specified under Section 37(i)(B)(ii) are clearly satisfied in the present case. There is nothing on record to demonstrate that the applicant if enlarged on bail, would in any way adversely affect the trial and without expressing any opinion on merit, I am of the view that the applicant is entitled to be released on bail on his furnishing reasonable sureties to the satisfaction of the court below.
8. Accordingly, the bail application is allowed.
9. Let the applicant Kadir Khan be released on bail in FIR/ Case Crime No. 75 of 2022, under Section 8 and 20 N.D.P.S. Act, P.S. Padari, District Mirzapur, 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 :- 25.7.2023 S.A.