Allahabad High Court
Anshu Gupta vs State Of U.P. Thru. Prin. Secy. Home, ... on 6 May, 2024
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:34831 Court No. - 12 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4790 of 2023 Applicant :- Anshu Gupta Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lko. Counsel for Applicant :- Anil Kumar Pandey Counsel for Opposite Party :- G. A. Hon'ble Pankaj Bhatia,J.
1. Heard learned counsel for the applicant and Sri Ravish Chandra Mishra, learned A.G.A. for the State.
2. The applicant seeks enlargement on bail in FIR No19 of 2023, under Section 8/20 of the N.D.P. S. Act, Police Station- Gosaiganj, District - Ayodhya.
3. In terms of the F.I.R., it was alleged that on the basis of the information received, a team of officers was constituted under the leadership of Circle Officer and premises of applicant was also searched. It was also indicated in the search memo that the applicant along with one co-accused accused person were apprehended and one of the co-accused persons ran away from the spot in question. Subsequently, on the basis of the confession of storing Ganja in the premises in question, a room was searched inside the premises where nine plastic bags containing Ganja were found and one plastic bag containing Ganja was kept in gallery. Out of the aforesaid 10 bags, prima facie opinion was formed that the goods contained therein were Ganja. The total weight of the said goods was 298 kg and out of which 500 gms. Ganja was taken as a sample.
4. It was also recorded that the applicant had confessed keeping and selling Ganja for profit. It was also recorded that there was no independent witness of the search to be carried out. It was also recorded that the main person, who has prepared the search memo had taken leave for some personal work and the balance recovery had to be affected by other constituents of the team. The applicant was apprehended and continuously to be in detention since 16.1.2023.
5. In the light of the said allegation, the contention the learned counsel for the applicant is that allegedly the search was carried out in a premises, thus, in terms of mandate of Section 42 of the N.D.P.S. Act, it was incumbent upon the searching party to record " the reasons to believe", which has not been done. He further argued that in terms of the Mandate of Section 42 of the N.D.P.S. Act, it was incumbent upon the Sealing Officer to have communicated the same within 72 hours to the immediate Superior Officer, as prescribed under Section 42 (2) of the N.D.P.S. Act. He further argued that the manner in which, the sample has been drawn is contrary to the notification dated 23rd December, 2022 and specifically drawn my attention to Chapter III of the said notification, which prescribes the manner of drawing sample. He further argued that sample drawn was not sent within the reasonable time. He placed reliance upon judgment of the Hon'ble Supreme Court in the case of Karnail Singh & Ors vs State Of Haryana; (2009) 2 SCC (Cri) 887 and emphasis upon paragraph no. 32 and 35 of the said judgment. He also places reliance upon judgments of the Hon'ble Supreme Court inMohd Muslim @ Hussain v. State (NCT of Delhi); 2023 LiveLaw (SC) 260 and Yusuf @ Asif v. State; Criminal Appeal No.3191 of 2023 decided on 13.10.2023.
6. He further argued that the applicant is in custody since 16.1.2023 and not even one witness has been examined so far and thus, in view of 24 witnesses are proposed to be examined, there is no likelihood that the trial being concluded in the near future. The applicant has no criminal antecedent under N.D.P.S. Act, as such the applicant may be enlarged on bail.
7. He also drawn my attention to the bail granted to the co-accused Mukesh Kumar and Siraj by the Session Court and by this Court respectively, however, he does not claim parity with the said orders, as no recovery was affected from the said persons.
8. Learned A.G.A. opposes the bail application while arguing that no error can be found in the manner in which, the samples were drawn from all the bags and mixed it in common sample. He further argues that the recovery was affected in accordance with law. He admits that FSL report is on record as CA-2, which indicates that recovered goods in question is Ganja, as such he argues that the bail should be rejected particularly, in view of huge quantity of Ganga i.e. 298 kgs is recovered, which is far from the commercial quantity in the case of Ganja, as such, the test of Section 37 of the N.D.P. S. Act has to be satisfied. He, however, does not dispute the fact that the applicant has no criminal history of offences under the N.D.P.S. Act.
9. Considering the arguments raised at bar, as the alleged recovery is more than commercial quantity, the test of Section 37 has to be satisfied. The scope of Section 37 of NDPS Act came up for consideration before the Supreme Court in Mohd Muslim @ Hussain v. State (NCT of Delhi); 2023 LiveLaw (SC) 260 wherein, interpreting Section 37, the Supreme Court observed 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 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 vs. Ratan Malik). 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. "
10. The mandate of Section 52A of NDPS Act has also not been followed and the effect of not following the mandate of Section 52A was dealt with by the Supreme Court in the case of Yusuf @ Asif v. State; Criminal Appeal No.3191 of 2023 decided on 13.10.2023 wherein the Supreme Court has observed as under:
"16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated."
11. In the light of the said interpretation as recorded above, prima facie in the present case, the sample has not been drawn in the presence of the Magistrate, separate sample has not been drawn from the 10 bags allegedly recovered from the premises in question and there are no independent witness of search. The other discrepancy is that the Sealing Officer left the place for the rest of the work to be done by the raiding party and he signed the document, which is apparent from the record and on these discrepancies alone the prosecution may not be able to sustain its case against the applicant. Thus, the prima facie view can be formed in favour of the applicant in terms of Section 37 of the N.D.P.S. Act. The applicant has no criminal history of offence under the N.D.P.s. Act, therefore, a view also can be formed in favour of the applicant in the light of the view taken by Hon'ble Supreme Court in the case of Ranjitsing Brahmajeetsingh Sharma Vs. State of Maharashtra & Anr: AIR 2005 Sc 2277.
12. It is clarified that the prima facie view is only for the present application and will not effect the trial.
13. In view of the reason as recorded above the applicant, who has no criminal antecedents,is entitled to be released on bail, as there is no likelihoodthat the trial will be concluded in the near future. Accordingly, the bail application is allowed.
14. Let the applicant Anshu Gupta be released on bail in the abovesaid first information report number on his furnishing personal bonds and two reliable sureties 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 :- 6.5.2024 Anuj Singh