Allowed

Shivratan Singh Alias Baba v. State of U.P.

Allahabad HC13 Oct 2022BAIL/18342/2020

Case brief

AI extract

What is this about?

Application for bail in an NDPS case was allowed. The High Court held that the mandatory provisions of Section 52-A of the NDPS Act regarding inventory and sampling were not followed, vitiating the prosecution. The applicant's prior history in a non-NDPS case did not justify denial of bail.

What did the court decide?

Applicant released on bail by furnishing a personal bond and two sureties each in the like amount.

Shivratan Singh Alias Baba Vs State of U.P. — Narcotics (NDPS) | Allahabad HC (2022)

¶1

Court No. - 79

¶2

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 18342 of 2020

¶3

Applicant :- Shivratan Singh Alias Baba Opposite Party :- State of U.P. Counsel for Applicant :- V.K. Agnihotri Counsel for Opposite Party :- G.A.

¶4

Hon'ble Subhash Vidyarthi,J.

¶5

1.Heard Sri V.K. Agnihotri, the learned counsel for the applicant, Sri Dinesh Kumar Srivastava, the learned Additional Government Advocate and perused the record.

¶6

2.Supplementary affidavit filed today is taken on record.

¶7

3.The instant application has been filed seeking release of the applicant on bail in Case Crime No. 250 of 20192, under Sections Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station Nawabganj, District Kanpur Nagar.

¶8

4.The aforesaid case has been registered on the basis of a first information report lodged by the In-charge of STF, Kanpur against eight named accused persons, including the applicant, alleging that on the basis of an information received from a Mukhbir, a truck was intercepted. The applicant was the driver of the truck. It is alleged that 30 bags were recovered from the truck and upon opening, some packets weighed 05 kg. each and some smaller packets were recovered, each of the sacks containing 25 kgs. Ganja weighing in all 750 kgs.

¶9

5.The recovery memo states that small quantity of Ganja was taken out from sacks weighing in all 500 gm. and it was sent for testing.

¶10

6.It has been averred in the affidavit filed in support of the bail application that the applicant is an innocent person, he has been falsely implicated in the case, he is having no previous criminal history and he is in jail since 27.10.2019. It has also been stated in the affidavit that there is no possibility of the applicant tampering with any evidence and in such circumstances, the applicant is entitled for bail. It is also stated in the affidavit that the applicant will not misuse the liberty of bail and he will fully cooperate in the investigation.

¶11

6.A counter affidavit has been filed opposing the prayer for grant of bail and it has been stated that besides the present case, the applicant has been involved in another Case Crime No. 398 of 2015 under Sections 147, 323, 504, 308 IPC, Police Station Nawabganj, District Kanpur Nagar and Case Crime No. 215 of 2020, under Section 3(1) of Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986.

¶12

7.A supplementary affidavit has been filed on behalf of the applicant wherein it

¶13

has been stated that the applicant has been granted bail in Case Crime No. 398 of 2015 by the learned court below and a copy of bail order has been annexed with the supplementary affidavit.

¶14

8.The learned counsel for the applicant has submitted that there are no independent witnesses of the alleged recovery and that even as per the averments made in the recovery memo itself, samples have not been drawn from all the packets that were recovered, although the recovery memo mentions that several packets were kept, in each of the 30 sacks, it does not even mention the number of packets recovered.

¶15

9.The learned counsel for the applicant has further submitted that as per the provisions contained in Standing Order No. 1 of 1989, samples are required to be drawn in duplicate from each of the packets and each sample should weigh 25 grams.

¶16

10.Per contra, the learned Additional Government Advocate has opposed the prayer for grant of bail, but he could not dispute the aforesaid aspects of the matter.

¶17

11.Having considered the aforesaid facts and submissions, what is apparent from a perusal of the recovery memo is that police claims to have recovered 30 sacks from the truck and it is mentioned in the recovery memo that some packets weighing 05 kg each and some smaller packets were kept in sacks, the number of packets recovered and the weight of the alleged smaller packet is not mentioned in the recovery memo. Samples were not drawn from each of the packet and recovery memo mentions that small quantities were taken out from all the sacks weighing in all 500 gms.

¶18

12.Section 52-A of the Narcotic Drugs and Psychotropic Substances Act provides as follows:

¶19

"52A. Disposal of seized narcotic drugs and psychotropic substances.—

¶20

(1)The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may from time to time, determine after following the procedure hereinafter specified.

¶21

(2)Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic

¶22

substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of—

¶23

(a) certifying the correctness of the inventory so prepared; or

¶24

(b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or

¶25

(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

¶26

(3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.

¶27

(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence."

¶28

13.A perusal of the aforesaid section indicates that it is mandatory that the officer making of the seizure or any other officer referred to in Sub-section (2) of Section 52-A of the NDPS Act has to prepare an inventory of the substance recovered containing details of their description quality, quantity, mode of packing, marks, numbers or some other identifying particulars as may be relevant and he should make an application to a Magistrate for the purpose of certifying the correctness of the corrections of inventory and taking photographs of the substance in presence of the Magistrate and for certifying the photographs or allowing collection of substance in the presence of the Magistrate and certifying the correctness of the list of samples drawn.

¶29

14.Although a counter affidavit has been filed in the present case, nothing has been stated in this regard and no document has been annexed, which may indicate that the requirements of Sub-section (2) of Section 52-A of the NDPS Act have been applied in the present csae.

¶30

15.From the aforesaid discussion, prima facie, it appears that the mandatory provisions of law regarding seizure and collection of samples have not been followed in the present case, which may result in the prosecution being vitiated. For this reason, it appears at this stage that the applicant may not be held guilty of the offences alleged.

¶31

16.Moreover as the applicant has a previous history of one criminal case, which is not related to the NDPS Act, there is no ground for a reasonable apprehension that in case the applicant is released on bail, he will again indulge himself in commission of similar offences, more particularly there is no material has been placed on record along with the counter affidavit to justify such an apprehension.

¶32

17.In view of the aforesaid discussion, the bail application deserves to be be allowed and it is, accordingly, allowed .

¶33

18.Let the applicant Shivratan Singh Alias Baba be released on bail in Case Crime No. 250 of 20192, under Sections Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station Nawabganj, District Kanpur Nagar on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court below, subject to the following conditions:-

¶34

(i) The applicant will not tamper with the evidence during the trial.

¶35

(ii) The applicant will not influence any witness.

¶36

(iii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

¶37

(iv) The applicant shall not directly or indirectly make 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 to any police officer or tamper with the evidence.

¶38

19.In case of breach of any of the above condition, the prosecution shall be at liberty to move an application before this Court seeking cancellation of the bail.

¶39

Order Date :- 13.10.2022 Ashish Pd.

¶40

Digitally signed by ASHISH PRASAD Date: 2022.10.17 11:24:41 IST Reason: Location: High Court of Judicature at Allahabad

Shivratan Singh Alias Baba v. State of U.P.

Case brief

What is this about?

What did the court decide?

Shivratan Singh Alias Baba v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ajay Kumar Vs State of U.P.

Israr Vs State of U.P.

Mohit Upadhyay Vs State of U.P.

Subhranshu Singh @ Shibbu Singh Vs State of U.P.

Khalik @ Nochi Vs State of U.P.

Nasir Ali @ Malik Vs State of U.P.