Ashok Rai v. State of U.P. Thru. Prin. Secy. Home, Lucknow

Court No. - 14 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11717 of 2023 Applicant :- Ashok Rai Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lucknow Counsel for Applicant :- Ram Singh Counsel for Opposite Party :- G.A. Hon'ble Mohd. Faiz Alam Khan,J.

¶1Rejoinder affidavit filed by the applicant is taken on record.

¶2Heard Shri Ram Singh, learned counsel for the accused-applicant as well as learned A.G.A. for the State and perused the record.

¶3This bail application has been moved by the accused/applicant-Ashok Rai for grant of bail, in Case Crime No.77 of 2023, under Sections 8/20 Narcotic Drugs & Psychotropic Substances Act 1985, Police Station Malipur, District Ambedkar Nagar, during trial.

¶4Learned counsel for the accused-applicant while pressing the bail application submits that the applicant has been falsely implicated in this case and no contraband as claimed by the prosecution has been recovered from the possession of the applicant.

¶5It is further submitted that admittedly the police party was aware of the arrival of the applicant with contraband and information in this regard has been given by the informer to Police party which has not been recorded in writing and thus mandatory provision of Section 42 of the N.D.P.S. Act has been violated.

¶6It is further submitted that specimen of the contraband has not been taken in accordance with the procedure prescribed under Section 52 A of the N.D.P.S. Act as well as the Standing Order No. 1/ 89 issued by the Department of Revenue, Ministry of Defence, Government of India.

¶7It is also submitted that Section 50 of N.D.P.S. Act has also not been complied in letter and spirit and the right to be searched before the Magistrate or Gazetted Officer has not been communicated in the manner wherein it should have been, thus the recovery and arrest in view of the same is void ab-initio.

¶8It is further submitted that the arrest/ recovery from the applicant is also under the cloud of suspicion in absence of independent public witnesses.

¶9It is vehemently submitted that the applicant is in jail in this case since 24.4.2023 and the trial has not been started yet and keeping in view the pendency of criminal cases before the trial courts, the same is not expected to conclude in near future. Charge sheet in this case has already been submitted and there is no apprehension that after being released on bail he may flee from the course of law or may otherwise misuse the liberty.

¶10Learned counsel for the applicant further submits that neither in the arresting memo/ FIR nor anywhere in the case diary it has been disclosed as to the substance which has been seized from the possession of the applicant is either consisting of flowering or fruiting tops of the plant of cannabis or the same was also comprising of stem and leaves, in this background the whole quantity shown to be 'Ganja' could not be believed.

¶11It is also submitted that Hon'ble Supreme Court in Mohd. Muslim Vs. State (NCT of Delhi), MANU/SC/ 0320/2023 and Rabi Prakash Vs. State of Odisha; MANU/SCOR/83201/2023 has opined that sting of the twin conditions enumerated in Section 37 (1) (b) of the N.D.P.S. Act may be reduced having regard to surrounding circumstances of a particular case and the satisfaction of the court with regard to the twin condition mentioned in Section 37 (1) (b) of the N.D.P.S. Act is prima facie and not conclusive.

¶12Learned A.G.A., however, opposes the prayer of bail of the applicant on the ground that commercial quantity of 'Ganja' has been recovered and keeping in view the twin conditions enumerated in Section 37(1) (b) of N.D.P.S. Act the applicant is not entitled to be released on bail. Learned AGA has also submitted that Section 50 of NDPS Act as first is not applicable as the contraband is shown to have been recovered from a vehicle and secondly the search of the vehicle as well as of the applicant was done in front of the Circle Officer of Police who is a gazetted officer.

¶13Having heard learned counsel for the parties and having perused the record, it is reflected that 48 K.G. and 250 grams of 'Ganja' is shown to have been recovered from the joint possession of the applicant and 4 other co-accused persons. Various submissions have been raised in order to show that recovery and arrest of the applicant is doubtful. It was highlighted that it was the duty of the prosecution to have sent the sample allegedly taken at the spot to the Forensic Lab immediately having regard to the circular issued by the Department of Revenue, Ministry of Finance, Government of India, which has not been done in this case. It was also highlighted that the possession of whole 'cannabis' plant is not punishable under N.D.P.S. Act keeping in view the definition of 'Ganja' provided in Section 2(iii) (b) of N.D.P.S. Act, wherein only the flowering or fruiting top of cannabis plant (excluding seeds and leaves) is punishable. It is also submitted that the police party has not written anywhere either in the recovery memo or even in any communication, while sending specimen to the Forensic Lab as to whether the whole quantity recovered from the possession of the applicant was consisting of flowering or fruiting top of cannabis plant and in this back ground it is submitted that the whole quantity of contraband shown to have been recovered from the possession of the applicant may not be termed as 'Ganja' in view of Section 2(iii)

(b) of the N.D.P.S. Act. The criminal history of one case has been adequately explained in para 18 of the bail application. The applicant is in jail in this case since 24.4.2023. His presence may be secured before the trial court by placing adequate conditions

¶14Having regard to the overall facts and circumstances of the case and keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, submissions of the learned counsel for the parties and without expressing any opinion on the merits of the case, I am of the considered view that applicant has made out a case for bail. The bail application is, thus, allowed.

¶15Let the accused/applicant-Ashok Rai involved in above-mentioned case, be released on bail on his furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:-

(i) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial.

(ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.

(iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

¶16In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

¶17Identity, status and residence proof of the applicant and sureties be verified by the Court concerned before the bonds are accepted.

¶18Observations made herein-above by this court are only for the purpose of disposal of this bail application and shall not be construed as an expression on the merits of the case. Order Date :- 7.11.2023 Muk High Court of Judicature at Allahabad, Lucknow Bench