Moosa v. State of U.P. Thru. Prin. Secy. Home Lko

Court No. - 14 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5660 of 2023 Applicant :- Moosa Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Vijay Kumar Counsel for Opposite Party :- G.A. Hon'ble Mohd. Faiz Alam Khan,J.

¶1Heard learned counsel for the accused-applicant as well as learned A.G.A. for the State and perused the record.

¶2This bail application has been moved by the accused/applicant-Moosa for grant of bail, in Case Crime No. 352 of 2022, under Section 8/21 N.D.P.S. Act, Police Station Baldirai, District Sultanpur, during trial.

¶3Learned 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 and the whole story, as shown by the prosecution in the F.I.R./recovery-memo is false, concocted and could not be believed.

¶4It is further submitted that the secret information allegedly received from the informer has not been reduced into writing either before or after recovery/arrest, thus mandatory provision of Section 42 N.D.P.S. Act has been violated. It is also submitted that Section 50 of the N.D.P.S. Act has also not been complied in letter and spirit and the right to be searched before the gazetted officer or magistrate has not been communicated as the same was required by established principle of law.

¶5It is further submitted that the police party itself admitted that the place from where the applicant was arrested is a busy place, however, no attempt has been made by the police party to procure independent public witness. Thus, the recovery as well as the arrest has become doubtful in absence of any independent public witness.

¶6It is also submitted that no serious efforts have been made by the police party to procure independent public witness and the absence of independent public witness casts a cloud of suspicion over the whole prosecution story and even if the case of the prosecution is believed, only 17 grams of 'morphine' is shown to have been recovered from the possession of the applicant, which is far below the commercial quantity i.e. 250 grams. It is next submitted that sample has not been taken as required by the provisions as contained under Section 52(A) of the N.D.P.S. Act as well as the guidelines issued by the Department of Revenue in the year 1989.

¶7It is further submitted that apart from the instant case, the complicity of the applicant has also shown in other 08 criminal cases, however, the same have been explained in para no.26 of the bail application as well as para no.11 of the rejoinder affidavit and out of these 08 cases bail orders with regard to 05 cases have been enclosed with the bail application and one of such case pertaining to Goonda Act has become infructuous by the eflux of time and with regard to Case Crime No. 381 of 2019, under Section 411 I.P.C., 'closure report/final report' has been filed in favour the applicant. However, the criminal history of the applicant would not be having any bearing on the fate of the plea of the instant bail application, as only 17 grams of 'morphine' is shown to have been recovered from the possession of the applicant, which is far below the minimum commercial quantity i.e. 250 grams.

¶8It is next submitted that applicant is in jail in this case since

22.11.2022 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.

¶9Learned A.G.A., however, opposes the prayer of bail of the applicant.

¶10Having heard learned counsel for the parties and having perused the record, it is reflected that applicant is shown to have been arrested while possessing 17 grams 'Morphine'. The commercial quantity of 'Morphine' starts from 250 grams, therefore, the twin conditions, as enumerated under Section 37(1)(b) of the N.D.P.S. Act would not attract in this case. Various submissions have been raised by learned counsel for the applicant in order to show that the arrest and recovery of contraband is highly doubtful in absence of independent public witnesses, non-compliance of Section 52-A of the N.D.P.S. Act. Applicant is in jail in this case since 22.11.2022. Criminal history of eight cases has been adequately explained in bail application as well as in the rejoinder affidavit. The presence of the applicant may be secured before the trial court by placing adequate conditions/restrictions.

¶11Having 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.

¶12Let the accused/applicant-Moosa 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.

¶13In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

¶14Identity, status and residence proof of the applicant and sureties be verified by the Court concerned before the bonds are accepted.

¶15Observations 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 :- 2.12.2023 Praveen High Court of Judicature at Allahabad, Lucknow Bench