Allahabad High Court
Mohd. Sharif @ Sarik vs State Of U.P. Thru. Prin.Secy. Home on 22 March, 2024
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:25747 Court No. - 12 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3245 of 2024 Applicant :- Mohd. Sharif @ Sarik Opposite Party :- State Of U.P. Thru. Prin.Secy. Home Counsel for Applicant :- Anil Kumar Pandey Counsel for Opposite Party :- G.A. Hon'ble Pankaj Bhatia,J.
1. Heard learned counsel for the applicant, learned AGA and perused the record.
2. The applicant seeks enlargement on bail in FIR No.478 of 2023, under Section 8/21(C)/29/60(3) of NDPS Act, P.S. Zaidpur, District Barabanki.
3. In terms of the FIR it was alleged that on the basis of a search carried out from the persons named in the FIR apart from the applicant, it was alleged that from the driver of the vehicle, 350 gm of morphine was allegedly recovered; from the other co-accused Rashid, allegedly 270 gms of morphine was recovered from the vehicle which was under his possession and from the driver Noorul Hasan, 50 packets of morphine were also recovered. It was recorded that the said persons from whom the recovery was affected had stated that they used to purchase the offending goods from the applicant.
4. Learned counsel for the applicant, in the light of the said allegations, argues that no recovery was affected from the applicant and the applicant was linked with the offence in question solely based upon the statement of the co-accused which is not admissible in evidence in view of the law as explained in the case of Tofan Singh v. State of Tamil Nadu - (2021) 4 SCC 1. It is further argued that one of the co-accused from whom the recovery was affected has been enlarged on bail vide order dated 11.01.2024. As regards the criminal antecedents, it is argued that the applicant was linked with the offences stated in Para 25(d), (e), (f), (g) & (h) in which he is on bail.
5. To demonstrate and justify the criminal antecedents as referred above, particularly in the NDPS Act, learned counsel for the applicant argues that on account of enmity, the applicant is being roped in false cases for which a writ petition has been filed before this Court being Writ Petition No.549 of 2022 in which the Court had directed the State to file an affidavit which has not been filed till date and the said writ petition is said to be pending.
6. In short, to justify his criminal antecedents, the applicant alleges that he is a victim of vindictiveness and is falsely implicated in various cases.
7. learned AGA, on the other hand, opposes the bail application by arguing that the recovery as shown in the FIR is more than commercial quantity, as such, the tests of Section 37 of NDPS Act has to be satisfied and looking into the criminal antecedents of the applicant, the bail application should be rejected. He, however, does not deny that the co-accused from whom recovery was made was enlarged on bail and the said order is not under challenge.
8. Considering the submissions made at the Bar, prima-facie, even in terms of the FIR, the applicant was linked with the offence based upon the averment of the co-accused that the goods were supplied by the applicant to the said accused; and no recovery was affected from the applicant, as such, apart from the statement of the co-accused, there is no material to link the applicant with the offence in question.
9. 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. As regards the first test prescribed under Section 37 of NDPS Act, the same stands satisfied in favour of the applicant as no recovery was affected from the applicant and the statement under Section 67 of NDPS Act is not binding in view of the law as explained in the case of Tofan Singh (supra).
11. As regards the second test: various cases were instituted against the applicant for which allegations are levelled by the applicant in the form of a writ petition which is pending adjudication. Any view given with regard to the implication of the applicant in the said cases would not be proper, while deciding the present bail application.
12. Considering the fact that the co-accused has been enlarged on bail and no recovery was affected from the applicant, the applicant is entitled to be enlarged on bail. In view thereof, the application is allowed.
13. Let the applicant Mohd. Sharif @ Sarik be released on bail in aforesaid FIR number on his furnishing a personal bond with two sureties of the like amount each to the satisfaction of 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 :- 22.3.2024 nishant