Allowed

Abid v. Narcotics Control Bureau and Another

Allahabad HC23 Nov 2020BAIL/13551/2020

Case brief

AI extract

What is this about?

Single judge allowed bail to the applicant accused under Sections 20 and 29 of the NDPS Act. The court applied the Shiv Shankar Keshari ratio, noting the trial is pending, nature of official witnesses, and Article 21 considerations without pronouncing a finding of not guilty.

What did the court decide?

Released on bail with personal bond and two sureties upon furnishing, subject to strict conditions regarding presence, cooperation, and non-tampering.

Abid Vs Narcotics Control Bureau and Another — Narcotics (NDPS) | Allahabad HC (2020)

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Court No. - 91

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13551 of 2020

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Applicant :- Abid Opposite Party :- Narcotics Control Bureau And Another Counsel for Applicant :- Sadaful Islam Jafri,Nazrul Islam Jafri(Senior Adv.)

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Counsel for Opposite Party :- Ashish Pandey,G.A.

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Hon'ble Gautam Chowdhary,J.

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Heard learned counsel for the applicant and Sri Ashish Pandey, learned counsel for the N.C.B. as well as learned A.G.A. for the State and perused the material brought on record.

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The present bail application has been filed on behalf of the applicant, Abid, with a prayer to release him on bail in Case Crime No. VIII/26/DZU of 2019, under Sections 20, 29 N.D.P.S Act, Police Station- N.C.B.D.Z.U., District- Delhi, during pendency of trial.

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Learned counsel for the applicant has submitted that the applicant and co-accused are the cleaner and driver of the truck, who were traveling at Meerut and were intercepted at Meerut. He has next submitted that according to the complaint filed by the N.C.B., 49 bags containing Ganja were recovered and according to the witness Kunwar Pal recovered substance was like brown grass (Bhure Rang Ka Ghaas Numa Padarth), which can not be said to be Ganja. In support of his contention he placed reliance on Section 2(iii)(b) of NDPS Act is quoted herein below:

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"Gaga that is, the flowering of fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated."

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Learned counsel for the applicant has next submitted that in view of Section 37 of the N.D.P.S. Act, the Court while considering the application for bail, is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail and the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. He has next submitted that the alleged sample taken on the spot of the recovered brownish leaves prepared by the NCB Team was not the sample which was sent to the chemical examiner and

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therefore, the false implication of the applicant in the present case cannot be ruled out. He has next submitted that nothing has been said by the witness Kunwar Pal in his statement as to how many samples and how much quantity of samples was prepared by the N.C.B., therefore, it is clear that the sample, which was allegedly prepared by the N.C.B., was not the samples sent to the chemical examiner. He has next submitted that the complaint of the present case has neither filed any application before the Magistrate for drawing the samples under his supervision nor followed the procedure of drawing of representative nor followed the procedure of drawing of representative samples which is wholly illegal and contrary to the provision of law although an application was filed by the Investigating Officer Rajeev Sahrawat before the Additional Session Judge on 13.07.2019 in which he had prayed for remand of Nadeem Ansari, Abid for 14 days and also prayed for passing the necessary order for him to deposit the seized truck etc. in the maalkhana of Police Station Sarurpur, Meerut which was allowed by the learned Additional Chief Judicial Magistrate, Meerut, vide order dated 13.07.2019. He has next submitted that all the witnesses are official witnesses and there is no possibility that the applicant may influence them. Other submissions showing the falsity of the prosecution story with regard to the recovery have also been made. The counsel has also tried to demonstrate the circumstances indicating the false implication of the applicant.

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Learned counsel for the applicant has placed reliance upon a judgment of High Court of Punjab and Haryana at Chandigarh in the case of Jangir Singh Vs. State of U.P. decided on 13.07.2018. The relevant paragraph of the said judgment is quoted hereinbelow:

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"Accordingly, keeping in view the law position as discussed above and the facts and circumstances as well as custody period, which is 10 months and the fact that all the witnesses are official witnesses and there is no possibility that the petitioner may influence them, the present petition is allowed and the petitioner (Jangir Singh) is directed to be released on regular bail subject to his furnishing bail/ surety bonds to the satisfaction of the trial Court."

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It has also been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been submitted that the applicant is in jail since 12.07.2019 having no criminal history. It has also been argued that trial is still pending it has not been started yet.

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Learned AGA for the State as well as learned counsel for the N.C.B. have opposed the prayer for bail and has placed reliance upon a judgment of Hon'ble Apex Court in case of Bansi Lal Vs. State of Haryana, (2011) 11 Supreme Court Cases 359. It is relevant to mention here that in the said case section 37 of the Act has not been considered.

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The Apex Court in the Case of Union of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798 has held that the court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.

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Considering the facts of the case and keeping in mind, the ratio of the Apex Court's judgment in the case of Union of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798, larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/ State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail.

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Let the aforesaid applicant, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions-

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

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

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

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The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case

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of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code;

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In case, the applicant misuses the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the Court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

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The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

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In case the applicant has been enlarged on short term bail as per the order of committee constituted under the orders of Hon'ble Supreme Court his bail shall be effective after the period of short term bail comes to an end.

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The applicant shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.In case court below is functioning normally, this condition will not apply and applicant shall be enlarged on bail on execution of bail bond and two sureties to the satisfaction of the court below.

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The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

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The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

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

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Order Date :- 23.11.2020 SK Srivastava

Abid v. Narcotics Control Bureau and Another

Case brief

What is this about?

What did the court decide?

Abid v. Narcotics Control Bureau and Another

Case brief

What is this about?

What did the court decide?

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