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

Court No. - 12 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14329 of 2022 Applicant :- Deelkumari Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Manoj Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Pankaj Bhatia,J.

¶1Heard learned counsel for the applicant, learned AGA and perused the record.

¶2The accused-applicant seeks bail in Case Crime No.19 of 2022 under sections 8/20/23 NDPS Act, P.S. Gaurifanta, District Lakhimpur Kheri.

¶3In terms of the FIR, allegedly two persons including the applicant were talking to each other and coming from Nepal and on the applicant being apprehended, from her body, a red cloth was found attached, which on search revealed that she was carrying 3.120 kg of Charas, which was apprehended and a sample was drawn and sent for analyses.

¶4In the light of the said, the submission of the counsel for the applicant is that as the search was carried out on the person of the applicant, the mandate of section 50 of the NDPS Act was to be followed which has not been followed. It is further argued that even there was no independent witnesses to the search and thus, according to the applicant, the non-following the mandate of section 50 of the NDPS Act itself vitiates the trial. He further argues that even in terms of the mandate of Section 52-A of the NDPS Act, the sampling was not in the presence of the magistrate. He further places reliance on the judgment of the Supreme Court in the case of Yusuf @ Asif vs. State, SLP No.3191 of 2023 arising out of SLP (Crl.) No.3010 of 2023 decided on 13.10.2023. He has also filed a copy of the order-sheet which demonstrates that since the arrest, the trial is not proceeding and after the trial court passed a strict order, PW-1 had appeared for deposition and thereafter is not coming for cross examination on as many as ten days. He thus, argues that the trial is being delayed without the fault of the applicant, as such, the applicant should be enlarged on bail.

¶5Learned AGA opposes the bail application by arguing that as the recovery is more than the commercial quantity, in view of the bar under section 37 of the NDPS Act, the bail application deserves to be rejected. However, he admits that the no FSL Report has come so far.

¶6Considering the submissions made at the bar, in view of the alleged recovery being more than the commercial quantity, the test of section 37 of the NDPS Act is to be satisfied. Section 37 of the Act came for interpretation before the Supreme Court in the case of Mohd. Muslim @ Hussain vs. State (NCT of Delhi) 2023 Live Law (SC) 260, wherein the Supreme Court interpreted Section 37 of the NDPS Act and observed 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 a 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.

¶19A 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.

¶20The 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 Malik). 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. "

¶7The effect of non-compliance of Section 52-A of NDPS Act was also considered by the Supreme Court in the case of Yusuf @ Asif vs. State, SLP No.3191 of 2023 arising out of SLP (Crl.) No.3010 of 2023 decided on 13.10.2023 wherein, it was observed as under : "16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated."

¶8Considering the present case, prima-facie the mandate of section 50 of the Act has not been followed and even the mandate of Section 52-A of the Act has also not been followed. The FSL Report has not come so far. Thus, in these said infirmities, prima-facie view can be formed that the prosecution may not be able to establish the offence. The said view is prima-facie for the consideration of the bail application only and shall have no affect on the trial.

¶9Considering the second aspect that the applicant has no criminal antecedents and the order-sheet demonstrates that the prosecution is lacks in prosecuting the case, thus, the second test is also satisfied, as such, considering the fact that the applicant is a lady, she is entitled for the bail. Thus the bail application is allowed.

¶10Let the applicant Deelkumari be released on bail in aforesaid first information report number subject to her furnishing a personal bond and two reliable sureties of Indian Citizens and have net worth for an amount as to decided by 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.

(d) The applicant shall furnish the surety to the satisfaction of the court concerned who are Indian Citizens and have net worth for the amount as to be decided by the Court. Order Date :- 29.2.2024 VNP/- High Court of Judicature at Allahabad, Lucknow Bench High Court of Judicature at Allahabad, Lucknow Bench