Allahabad High Court
Siraj vs State Of U.P Thru. Prin. Secy. Home Civil ... on 27 February, 2024
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ? Neutral Citation No. - 2024:AHC-LKO:17816 Court No. - 12 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 274 of 2024 Applicant :- Siraj Opposite Party :- State Of U.P Thru. Prin. Secy. Home Civil Secrt. Lko. Counsel for Applicant :- Shashank Shukla,Prachi Shukla Counsel for Opposite Party :- G.A. Hon'ble Pankaj Bhatia,J.
1. Counter affidavit and rejoinder affidavit filed today are taken on record.
2. Heard learned counsel for the applicant as well as learned A.G.A. and perused the record.
3. In terms of the FIR, allegedly on the basis of a search carried out, three persons named in the FIR were apprehended and allegedly Ganja was recovered from the conscious possession. It was alleged that 298 KG of Ganja was recovered out of which a sample of 500 grams was drawn.
4. The contention of the counsel for the applicant is that the applicant was not apprehended on the spot and the name of the applicant was linked with the offence in question on the statement of the co-accused, which according to the applicant is not admissible in evidence in view of the law as laid down in the case of Tofan Singh Vs. State of Tamilnadu : AIR 2020 SC 5592. He further argues that three of the co-accused from whom the alleged recovery was done were enlarged on bail by the Trial Court itself in terms of the orders which are contained in Annexure No. 5 and the applicant was denied the benefit of bail, solely based upon the criminal antecedents of the applicant as recorded in the bail rejection order. To explain the criminal antecedents of the applicant, the applicant has filed the rejoinder affidavit stating that the Case No. 137 of 2023 is not a case under the NDPS Act and is a case under Section 4/25 of the Arms Act and the applicant is not even named in the said FIR. As regards the Case No. 254 of 2018, the counsel for the applicant states that he has been exonerated in the said case vide judgment dated 24.03.2021. As regards the Case No. 260 of 2013, he argued that the same was registered subsequent to the present offence. In the cases referred at Serial No. 5 & 6, the applicant is on bail and the case referred at Serial No. 7, it is not related to the applicant. He further argued that the applicant is in custody since 29.09.2023, as such, he may be enlarged on bail.
5. Learned A.G.A. opposed the bail prayer by arguing that the recovery is more than the commercial quantity prescribed, as such, the test of Section 37 NDPS Act has to be satisfied.
6. Considering the submissions made at the Bar, as the recovery is allegedly more than the commercial quantity, the test of Section 37 NDPS Act has to be satisfied. Section 37 of the NDPS Act came up for interpretation by the Supreme court in the case of Mohd Muslim @ Hussain vs. State (Supra), wherein the Supreme Court interpreted Section 37 of the NDPS Act 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 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 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. In view of the interpretation as given by the Supreme Court as recorded above, prima facie, in the present case, the applicant was linked with the offence in question solely based upon the testimony of the co-accused recorded under Section 67 of the NDPS Act, which is not admissible in law in view of the law as laid down in the case of Tofan Singh Versus State of Tamilnadu (Supra), as the recovery was effected from the applicant, prima facie, a view can be formed that based upon the statement alone, the prosecution may not be able to establish the offence against the applicant. The observation is only for the purpose of the bail and would not effect the case on merits. As regards, the second of the twin condition prescribed under Section 37 of the NDPS Act as applicant has no criminal antecedent of an offence under the NDPS Act prior to the offence in question as Case Crime No. 245 of 2018 lead to a judgment in favour of the applicant, in view of the law as explained in the case of Ranjitsing Brahmajeetsing Sharma vs State Of Maharashtra & Anr : AIR 2005 SC 2277, the second of the twin test also stand satisfied in favour of the applicant.
8. In view of the reasoning as recorded above, I am of the view that the applicant, who is in custody since 29.09.2023, is entitled to be released on bail. Accordingly, the bail application is allowed.
9. Let the applicant Siraj be released on bail in FIR/ Case Crime No. 19 of 2023, under Section 8/20 NDPS Act, Police Station Gosaiganj, District Ayodhya, on his furnishing personal bonds and two reliable sureties 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 :- 27.2.2024 Arun