Allahabad High Court
Mohd. Raza vs State Of U.P. on 13 January, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 84 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 52931 of 2022 Applicant :- Mohd. Raza Opposite Party :- State of U.P. Counsel for Applicant :- Ashutosh Counsel for Opposite Party :- G.A. Hon'ble Sameer Jain,J.
1. Rejoinder affidavit on behalf of the applicant filed today, is taken on record.
2. Heard Sri Ashutosh, learned counsel for the applicant and Dr. S.B.Maurya, learned AGA-I, for the State.
3. The instant bail application has been moved on behalf of the applicant with the prayer to release him on bail in Case Crime No.135 of 2022, under Section 8/21 NDPS Act, Police Station Khajuriya, District Ramur during pendency of the trial.
4. According to prosecution case from the possession of the applicant total 150gm. of Alprazolam tablets and 288mg. Budine injunction and 31 vile of avil injunctions were recovered.
5. Learned counsel for the applicant submitted that applicant is innocent and he has falsely been implicated in the present matter and in fact no incriminating article has been recovered from his possession.
6. He submits that in the recovery memo it is nowhere stated that before search option was given to applicant that if he wants then his search may be taken either before the Magistrate or the Gazetted Officer and therefore, on the ground of violation of mandatory provisions of Section 50 NDPS Act, the applicant is entitled to be released on bail.
7. He further submits that at the time of recovery no public witness was taken. He further submits that earlier also applicant was implicated in the case of NDPS Act with regard to recovery of 8gm. of smack but in that case he has already been released on bail and except this case and the present one, applicant is not having any criminal history and in the present matter he is in jail since 8.10.2022.
8. Per contra, learned AGA opposed the prayer for bail and submitted that from the possession of applicantnumber of prohibited narcotics drugs were recovered including 150gm. Alprazolam tablet which is more than commercial quantity and at the time of search mandatory provisions of NDPS Act were duly complied and with the consent of the applicant his search was taken. He further submits that as applicant is having criminal history of one case of NDPS Act, therefore, he should not be released on bail.
9. I have heard learned counsel for the parties and perused the record of the case.
10. From the perusal of the record it appears that from the possession of applicant number of contrabands were recovered including 150gm of Alprazolam tablets which is more than commercial quantity of 100gm. and he is also having criminal history of one case of NDPS Act.
11. The provision of bail under the NDPS Act is regulated by Section 37 of NDPS Act and as per Section 37 of NDPS Act before granting bail in the offence relates to NDPS Act involving commercial quantity it is necessary to hear Public Prosecutor, it is also necessary to record finding that applicant is not guilty of such offence and after release applicant will not commit any offence.
12. In the present matter, from the perusal of recovery memo and consent letter which was provided by learned AGA it appears that provisions of Section 50 of NDPS Act have not been complied and no option was given to applicant that he is having right to be searched either before the Magistrate or before the Gazetted Officer, therefore, in view of the Constitution Bench of Supreme Court in the case of Vijaysinh Chandubha Jadeja Vs. State of Gujarat (2011) 1 SCC 609 there is violation of Section 50 of NDPS Act and it is evident even from the recovery memo itself. It can be said at this stage that applicant appears to be not guilty as on the basis of violation of Section 50 NDPS Act, possibility of conviction appears to be bleak.
13. Although applicant is having a criminal history of NDPS Act but as there appears to be violation of Section 50 NDPS Act, therefore, this Court is of the view that applicant is entitled to be released on bail.
14. In the light of discussions made above, without expressing any opinion on the merits of the case, the instant bail application is allowed.
15. Let the applicant-Mohd. Raza 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.
16. 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 :- 13.1.2023 SKM