Meraj v. State of U.P. Thru. Prin. Secy. Home

Court No. - 12 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14711 of 2022 Applicant :- Meraj Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Counsel for Applicant :- Anil Kumar Sharma, Ram Sahay Yadav 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.0297 of 2022 under sections 8/21 NDPS Act, P.S. Gudamba, District Lucknow.

¶3In terms of the FIR, it was alleged that on the basis of the search carried out, allegedly 400 gms. of morphine carrying in hand by the applicant was found, out of which 50 grams was drawn as a sample and the applicant was arrested.

¶4The counsel for the applicant argues that as the recovery was allegedly affected from the packet carried in hand, prima-facie the mandate of section 50 of NDPS Act has not been followed. He further argues that there are no independent witnesses to the search and the mandate of section 52-A of the NDPS Act has also not been followed. Reliance is placed upon the judgment of the Supreme Court in the case of Mohd Muslim @ Hussain v. State (NCT of Delhi); 2023 LiveLaw (SC) 260 as well as the judgment in the case of Yusuf @ Asif v. State; Criminal Appeal No.3191 of 2023 decided on 13.10.2023 particularly para 16. It is next argued that the applicant has no criminal antecedents of an offence under the NDPS Act and in all other cases, he is on bail. It is lastly argued that the applicant is in custody since

14.07.2022 and the trial has not even started.

¶4Learned AGA has vehemently opposed the prayer for bail and submitted that the recovery is more than the commercial quantity and the provisions of the NDPS Act has been complied with during the raid. It has also been submitted that looking to the criminal history, and in terms of the mandate of Section 37, the bail application deserves to be rejected. However, he admits that the FSL report has not come so far.

¶5Considering the submissions made at the bar, and the law as explained in the case of Mohd Muslim @ Hussain (supra), in the present case, there are no independent witness to the search and the mandate of section 52-A has not been followed. The relevant paras of the judgment in the case of Mohd Muslim @ Hussain (supra) are 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. "

¶6Considering all these infirmities, the whole trial can be vitiated in view of the law as explained in the case of Yusuf @ Asif v. State; Criminal Appeal No.3191 of 2023 decided on

13.10.2023 wherein the Supreme Court has 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."

¶7Considering the said infirmities, coupled with the fact that the applicant has no criminal history of an offence under the NDPS Act and there is no likelihood of the trial being concluded in the near future, the applicant who is in custody since 14.07.2022 is entitled for the bail. Thus the bail application is allowed.

¶8Let the applicant Meraj be released on bail in aforesaid first information report number subject to his furnishing a personal bond and two reliable sureties each of the like amount to the satisfaction of 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. Order Date :- 18.7.2024 VNP/- High Court of Judicature at Allahabad, Lucknow Bench