Allowed

Intekhab Akhtar v. Union of India

Allahabad HC18 May 2018BAIL/13710/2018

Case brief

AI extract

What is this about?

This bail application under the N.D.P.S. Act was allowed despite a previous rejection, considering the quantity of contraband was less than commercial quantity and application dismissed without expressing opinion on merits.

What did the court decide?

Applicant involved in Department Case No. 9 of 2017-18 under Section 27-A N.D.P.S. Act released on personal bond and two sureties in the like amount.

Intekhab Akhtar Vs Union of India — Narcotics (NDPS) | Allahabad HC (2018)

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Court No. - 1

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13710 of 2018

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Applicant :- Intekhab Akhtar Opposite Party :- Union Of India Counsel for Applicant :- Karunesh Pratap Singh Counsel for Opposite Party :- Sanjay Kumar Singh

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Hon'ble Chandra Dhari Singh,J.

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Heard learned counsel for the applicant, learned counsel for opposite party and perused the record.

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As per the prosecution case as stated in the recovery memo dated 20.12.2017 is that the Deputy Commissioner Customs (Prev.) Division Gorakhpur received information with regard to presence of contraband in the shop of applicant in the named and style of M/s Barkati Traders, Pandey Hata, Gorakhpur. A search warrant was issued to Superintendent Customs (Prev.) Division Gorakhpur and in compliance of aforesaid search warrant the Superintendent (Prev.) Customs Division Gorakhpur along with two alleged independent witnesses namely Sri Anup Kumar Rai and Sri Waseem Ahmad came to the shop of the applicant on 20.12.2017 at 03:00 p.m. The applicant was present at the counter of his cosmetic shop. The search team told their identity and right to the applicant. The applicant was also apprised of his rights of giving search in presence of Gazetted Officer or Magistrate as provided under Section 50 of Narcotic Drugs and Psychotropic Substances Act. The applicant expressed his desire to take the search of his cosmetic shop by the Superintendent (Prev.) Division Gorakhpur. Thereafter, the search of applicant's shop was taken and it was alleged that near the counter of shop on the floor a bag was found which was kept over the other articles. The bag was light colour of "Annpurna Choker" inside it a Mummy Poco Paints Cartoons were found when the cartoons were opened inside it 05 packets of polythene bags were recovered, which contained plants leaf. The officer concluded that from its colour and smell it appears to be Ganja. In the office of the Customs, the recovered material was weighed in the Departmental Godown and was found 16.4 kg. total, from the different polythene bags. The samples have been taken from the different polythenes and send to the Forensic Science Laboratory for chemical analysis. The applicant was arrested on 20.12.2017 at 3:00 p.m. from his cosmetic shop but after about 19 hours detention on 21.12.2017 at 11:50 a.m. the statement of applicant under Section 67 of N.D.P.S. Act, has been recorded

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by the Superintendent Customs Division, Gorakhpur. Arrest memo was prepared on 21.12.2017 after 27 hours detention at Custom's office.

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Learned counsel for the applicant submitted that the applicant has applied for bail in the Departmental Case No.9 of 2017-18, under Section 8/20 of N.D.P.S. Act, 1985, P.S. Customs, District Gorakhpur before the Additional District and Session Judge, Gorakhpur but the same has been rejected vide order dated 06.01.2018.

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Learned counsel for the applicant further submitted that the applicant has moved an application No.5190 of 2018 before this Court on 12.02.2018 and that has been allowed on 08.03.2018 by other Bench of this Court.

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It is further submitted that on 24.02.2018 the remand date has been expired, so the Investigating Officer has filed an application before the Additional District and Session Judge, Gorakhpur for the extension of remand for 14 days under Section 8/12 N.D.P.S. Act and on same day applicant has also filed an application for the suspension of remand because applicant has been detained for more than 60 days without filing complaint against him. Thereafter, the court below has granted judicial remand to the Investigating Officer for 27.02.2017. On 27.02.2018 Investigation Officer has moved an application before the Additional District and Session Judge, Gorakhpur and mentioned therein that on the basis of statement of applicant/accused under Section 67 of N.D.P.S. Act, 1985, his role and involvement in possession and trafficking of Ganja has been found and appears to be regular offender and unfortunately in the papers Section 27-A of the N.D.P.S. Act, 1985 could not be mentioned and remand under Section 8/20 N.D.P.s. Act has been taken from time to time. So, offence under Section 27-A is also made out.

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It is also submitted that Investigating Officer has added the Section 27-A of the N.D.P.S. Act without collecting any credible evidence only for the purpose of lingering on the bail. On the ground of additional Section 27-A N.D.P.S. Act, learned Additional District and Session Judge, Gorakhpur has rejected the bail application. The applicant has applied for bail under Section 27-A of N.D.P.S. Act in the aforesaid case before learned Additional District and Session Judge, Court No.7, Gorakhpur, but the same has been rejected vide order dated 20.03.2018. He further submitted that the applicant has falsely been implicated in the present case due to some enmity with the businessman who were having jealously from business and 40 years goodwill of the applicant's father.

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It is submitted that in the statement of the applicant under Section 67 of N.D.P.S. Act, an unknown person has come to his shop 4-5 days before and after enquiry of rates of some cosmetic articles he returned back and on the day of incident he again came to the shop of the applicant at about 1:00 p.m. and purchased on cartoon of Boro-Plus and kept the said bag and bag of Boro-Plus outside the shop counter saying that he has to purchase some other articles from other shops in the market and after purchasing he will took his bag and Boro-Plus, the said unknown person told that he came from Bihar. The alleged contraband was recovered from the bag which was kept by the said unknown person. The present applicant has no link with the said recovered bag and he is not involved in any business of contraband article which were recovered from the shop. It has further been submitted that quantity of recovered article is less than commercial quantity.

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From the perusal of the statement of the applicant under Section 67 of the N.D.P.S. Act, the applicant was in 'Conscious Possession' he might not put it out side or near the counter of his shop openly, on the other hand, the said bag contained contraband was kept there by an unknown person who alleged himself to be a businessman and asked the applicant that he will take over the same after some purchasing from other shops of the market.

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Learned counsel for the applicant further submitted that the Investigating Officer has form the opinion that the applicant has involved in illegal trafficking of Ganja on the basis of statement of applicant under Section 67 of N.D.P.S. Act and add the Section 27-A of N.D.P.S. Act but it is pertinent to mention here Section 27-A of N.D.P.S. Act is for "punishment for financing illicit traffic and harboring offenders", only to harass the applicant, the Investigating Officer has added Section 27-A of N.D.P.S. Act without collecting any evidence regarding financing for illicit trafficking of contraband.

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It has further been submitted that there is no compliance of mandatory provision of Section 42, 52, 55 & 57 of N.D.P.S. Act, hence applicant is liable to be released on bail.

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On the other hand, learned counsel appearing for the opposite party vehemently opposed the prayer for bail application of the applicant but he has conceded that the contraband article which are recovered from the shop was less than commercial quantity and he has already been released on the bail by this Court vide order dated 08.03.2018.

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Considering the submission of learned counsel for the parties,

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facts of the case, nature of allegation and period of custody, gravity of offence, without expressing any opinion on the merits of the case, the Court is of the opinion that it is a fit case for bail. Hence, the bail application is hereby allowed.

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Let the applicant Intekhab Akhtar involved in Department Case No.9 of 2017-18, under Section 27-A of Narcotic Drugs and Psychotropic Substances Act, Police Station Custom, District Gorakhpur be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

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The applicant shall not tamper with the prosecution evidence.

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The applicant shall not pressurize the prosecution witnesses.

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The applicant shall appear on the date fixed by the trial Court.

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The applicant shall not commit any offence similar to the offence of which he is accused, or suspected of the commission, of which he is suspected.

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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.

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In case of default of any of the conditions enumerated above, the court below would be at liberty to cancel the bail without any reference to this Court.

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Order Date :- 18.5.2018 Jitendra

Intekhab Akhtar v. Union of India

Case brief

What is this about?

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Intekhab Akhtar v. Union of India

Case brief

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