Arshad @ Tota v. State of U.P

Court No. - 74 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5558 of 2023 Applicant :- Arshad @ Tota Opposite Party :- State of U.P. Counsel for Applicant :- Dheeraj Kumar Singh,Abhishek Tiwari,Mohd. Arshad Counsel for Opposite Party :- G.A. Hon'ble Vivek Varma,J.

¶1Sri Shashank Shekhar Pandey, learned A.G.A. for the State, submits that the instructions have been received and he has no objection in case the bail application is decided on merits.

¶2Heard learned counsel for the applicant and Sri Shashank Shekhar Pandey, learned A.G.A. for the State-opposite party.

¶3The instant bail application under Section 439 Cr.P.C. has been filed with the prayer to enlarge the applicant on bail in Case Crime No. 55 of 2023, under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, Police Station Loni, District Ghaziabad during the pendency of trial.

¶4Learned counsel for the applicant submits that the applicant has been falsely implicated in the instant case. False recovery of 170 grams alprazolam powder has been shown from the applicant. There is no independent witness to the alleged recovery. The mandatory provisions of Sections 42, 50, 51 and 52-A of the N.D.P.S. Act have not been complied with. No accurate scientific instruments were used for weighment. It is further contended that the alleged contraband was seized from the applicant on

15.01.2023 and the same was received by the Forensic Science Laboratory on 01.03.2023. The delay in sending the contraband for examination has also not been explained. The criminal history of the applicant has been explained in Paragraph-3 of the supplementary affidavit. The applicant is in jail since 15.01.2023 and in case he is enlarged on bail, he will not misuse the said liberty.

¶5Learned A.G.A. has opposed the prayer for bail but could not satisfactorily dispute the aforesaid submissions from the record.

¶6After hearing the rival contentions and after perusal of the record, this Court prima facie finds that the provisions of Sections 42, 50 and 51 of the N.D.P.S. Act have not been complied with. The sampling has not been done in the presence of the Magistrate which is required under Section 52A of the NDPS Act. There is no independent witness to the alleged recovery. The delay in sending the contraband for examination has also not been explained. Although the applicant is warranted in another case under the NDPS Act, the fact remains that in the present case there is non-compliance of mandate of Chapter V of the NDPS Act, as such there are reasonable grounds to believe that the applicant shall not indulge himself in other cases of similar nature. Further, the applicant has remained confined for more than ten months and after submission of the charge-sheet there is no hope of early conclusion of trial, more so when no reasonable apprehension has been brought to the fore by the State that the applicant, if enlarged on bail, would either tamper with the evidence or delay the trial or intimidate the witness, without commenting on merits of the case, I am of the opinion that the applicant is entitled to be enlarged on bail.

¶7Let the applicant-Arshad @ Tota, involved in the aforesaid case crime, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to the conditions that he:

(i) shall appear on the date fixed by the trial court;

(ii) shall not tamper with the prosecution evidence; and,

(iii) shall not pressurize the prosecution witnesses.

¶8In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court. Order Date :- 1.12.2023 SKT/- High Court of Judicature at Allahabad