Santosh Pandey v. State of U.P

Court No. - 74 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25462 of 2023 Applicant :- Santosh Pandey Opposite Party :- State of U.P. Counsel for Applicant :- Shri Prakash Dwivedi Counsel for Opposite Party :- G.A. Hon'ble Vivek Varma,J.

¶1Heard learned counsel for the applicant and Sri Prateek Tyagi, learned A.G.A. for the State-opposite party.

¶2The 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. 41 of 2023, under Sections 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station Rajgarh, District Mirzapur during the pendency of trial.

¶3Learned counsel for the applicant contends that the applicant has been falsely implicated in the instant case. False recovery of 94 kg. Ganja (54 bundles) has been shown from a pick up vehicle. The applicant was a passenger in the said vehicle. There is nothing on the record to demonstrate the conscious possession of 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. A common sample was taken from all the 54 bundles and the same was sent to the Forensic Science Laboratory for examination. The procedure of sampling is in violation of the provisions conferred under Rules 8, 9, 10 and 11 of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022. It is next contended that the driver of the alleged vehicle Jai Prakash Vishwakarma @ Raju Vishwakarma has been granted bail by this Court in Criminal Misc. Bail Application No. 27405 of 2023, Jai Prakash Vishwakarma @ Raju Vishwakarma v. State of U.P., vide order dated 26.07.2023. The applicant claims parity. The applicant is in jail since 08.04.2023 having no criminal history and in case he is enlarged on bail, he will not misuse the said liberty.

¶4Learned A.G.A. has opposed the prayer for bail but could not satisfactorily dispute the aforesaid submissions from the record.

¶5Having heard learned counsel for the parties and after perusal of the record, this Court prima facie finds that the mandate of Sections 42, 50, 51 and 52A of the N.D.P.S. Act has not been followed. There is no independent witness to the alleged recovery. Sampling was not done in the presence of the Magistrate. A common sample was taken from all the packets and the same was sent for forensic examination. The inventory of the seized contraband was not certified by the Magistrate. Thus, the procedure of sampling adopted is in violation of Rules 8, 9, 10 and 11 of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022. The driver of the alleged vehicle Jai Prakash Vishwakarma @ Raju Vishwakarma has been granted bail by this Court. The applicant has no criminal history apart from this case. Hence, there are reasonable grounds to believe that the applicant shall not indulge himself in other cases of like nature. Moreover, the applicant has remained confined for more than eight months and after submission of the charge-sheet there is no hope of early conclusion of trial and 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, therefore, without commenting on the merits of the case, I am of the opinion that the applicant is entitled to be enlarged on bail.

¶6Let the applicant-Santosh Pandey, involved in the aforesaid case, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of 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.

¶7In 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 :- 14.12.2023 SKT/- High Court of Judicature at Allahabad