Allowed

Rajesh Pal @ Sonu v. State of U.P.

Allahabad HC2 Dec 2021BAIL/35820/2021

Case brief

AI extract

What is this about?

In a bail application under Section 439 Cr.P.C. under the NDPS Act, the High Court found the applicant fit for bail after the State failed to obtain instructions on the seized vehicle connection, subjecting the release to strict court attendance conditions.

What did the court decide?

Applicant released on bail with personal bond and two sureties subject to conditions regarding court attendance and trial conclusion within one year.

Rajesh Pal @ Sonu Vs State of U.P. — Narcotics (NDPS) | Allahabad HC (2021)

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Court No. - 83

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35820 of 2021

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Applicant :- Rajesh Pal @ Sonu Opposite Party :- State of U.P. Counsel for Applicant :- Santosh Kumar Dubey Counsel for Opposite Party :- G.A.

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Hon'ble Shekhar Kumar Yadav,J.

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On 08.10.2021, this Court while granting time to learned AGA to file seek instruction in the matter, has passed the following order:

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"Learned A.G.A. prays for and is granted two weeks time to file detailed counter affidavit explaining the connection of the alleged vehicles, i.e., Tata bearing No. 1109-EX-UP 72 AT 7706 and Xylo Mahindra Car DL3CBM0552 with regard to the seizure of the illegal ganja weighing 750 Kgs. wrapped in 25 separate bags by the police and also arrested the applicant on the spot and also to explain as to whether the applicant has any connection with other co-accused, Bhim Prasad Gupta, Bhushan Sahu and Dheeraj Kumar.

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Put up as fresh on 29.10.2021."

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In compliance of the above order, learned AGA has not obtained any instructions.

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Heard Sri Amrendra Nath Singh, Senior Advocate assisted by Sri Santosh Kumar Dubey and Sri Krishna Kant Dubey, learned counsel for the applicant, learned AGA for the State and perused the record.

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This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant seeking enlargement on bail in Case Crime No. 284 of 2020, under Sections 8/20 of NDPS Act at Police Station Suriyawa, District Sant Ravidas (Bhadohi).

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Learned counsel for the applicant has submitted that the applicant has been falsely implicated in the present case. As per recovery memo, 750 kg Ganja is said to have been recovered from the vehicle bearing registration No. Tata 1109EX U.P.-

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72AT7706. He has further submitted that neither the applicant was driving the aforesaid vehicle nor he was sitting in the aforesaid vehicle. The applicant was separately driving Mahindra Xylo bearing registration No.DL3CVM 0552 from which nothing incriminating article has been recovered. He has further submitted that the applicant has no concern with the vehicle from which recovery has been made. He has further submitted that as per recovery memo, 750 kg Ganja containing 150 packets is shown to have been made from the possession of the accused applicant but the sample has been taken from only one packet. He has further submitted that at the time of arrest, mandatory provisions of NDPS Act has not been complied with. There is no independent eye witness of the alleged recovery, which has been shown by the police. The applicant is having no previous criminal history. The applicant is in jail since 14.11.2020.

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In support of his submission, learned counsel for the applicant has relied upon the order dated 08.10.2020 passed by a coordinate Bench of this Court in Criminal Misc. Bail Application No.28033 of 2020, in which he relied upon the judgement passed in Criminal Misc. Jail Appeal No. 7872 of 2007 (Haider Ansari Vs. State of U.P.) the relevant paragraph is extracted below:

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"Samples from the Norcotic Drugs and Psychotropic Substances seized, must be drawn on the spot of recovery, in duplicate, in the presence of search(Panch) witnesses and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama drawn on the spot."

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1.6.- Quantity of different drugs required in the sample

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"The quantity to be drawn in each sample for chemical test should be 5 grams in respect of all norcotic drugs and psychotropic substances except in the cases of Opium, Ganja and Charas/Hashish where a quantity of 24 grams in each case is required for chemical test. The same quantities should be taken for the duplicate sample also. The seized drugs in the

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packages/containers should be well mixed to make it homogenous and representative before the sample in duplicate is drawn."

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1.7.- Number of samples to be drawn in each seizure case

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"(a) In the case of seizure of a single package/container one sample in duplicate is to be drawn. Normally it is advisable to draw one sample in duplicate from each package/container in case of seizure of more than one package/container.

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(b) However, when the package/containers seized together are of identical size and weight, bearing identical markings and the contents of each package given identical results on colour test by U.N. Kit, conclusively indicating that the packages are identical in all respect/packages/container may be carefully bunched in lots of 10 packages/containers. In case of seizure of Ganja and Hasish, the packages/containers may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample in duplicate may be drawn."

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(c) Where-after making such lots, in the case of Hashish and Ganja, less than 20 packages/containers remain, and in case of other drugs less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn.

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(d) If it is 5 or more in case of other drugs and subsistances and 20 or more in case of Ganja and Hasish, one more sample in duplicate may be drawn for such remainder package/containers.

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(e) While drawing one sample in duplicate from a particular lot, it must be ensured that representative drug in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.

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1.8.- Numbering of packages/containers.

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Subject to the detailed procedure of identification of packages/containers, as indicated in para 1.4 each package/container should be securely sealed and an identification slip pasted/attached on each one of them at such place and in such manner as will avoid easy obliteration of the marks and numbers on the slip. Where more than one sample is drawn, each sample should also be serially numbered and marked as S-1, S-2, S-3 and so on, both original and duplicate sample. It should carry the serial number of the packages and marked as P-1, 2, 3, 4 an so on.

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1.9.- "It needs no emphasis that all samples must be drawn and sealed in

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the presence of the accused, panchnama witness and seizing officer and

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all of them shall be required to put their signature on each sample. The official seal of the seizing officer should also be affixed. If the person from whose custody the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and the duplicate of each of the sample."

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1.10.- Packing and sealing of samples

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"The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should also bear the S.No. Of the package (s)/container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope along with test memos should be kept in another envelope which should also be sealed and marked "secret-Drug sample/Test memo" to be sent to the concerned chemical laboratory."

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On the other hand, learned A.G.A. opposes the application for bail. It is submitted that the Central Government has declared Ganja above 20 kg. as commercial quantity of contraband.

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Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, severity of punishment as well as totality of facts and circumstances, at this stage without commenting on the merits of the case, I find it a fit case for bail.

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Let the applicant- Rajesh Pal @ Sonu , who is involved in aforementioned case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.

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(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in Court. In case of default of this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law.

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(ii) The applicant shall remain present before the Trial Court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A IPC.

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(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C., may be issued and if 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 IPC.

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(iv) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

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(v) The Trial Court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant.

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

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It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.

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Order Date :- 2.12.2021 Israr

Rajesh Pal @ Sonu v. State of U.P.

Case brief

What is this about?

What did the court decide?

Rajesh Pal @ Sonu v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

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