Allowed

Mahendra Kumar Seth v. State of U.P.

Allahabad HC8 Dec 2022BAIL/33758/2022

Case brief

AI extract

What is this about?

The court allowed a bail application filed under the NDPS Act, granting release without adjudicating case merits due to procedural violations regarding Section 50 and 52-A compliance during the search and recovery process.

What did the court decide?

Release granted upon furnishing a personal bond and two sureties each to the satisfaction of the court below subject to specified conditions.

Mahendra Kumar Seth Vs State of U.P. — Narcotics (NDPS) | Allahabad HC (2022)

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Court No. - 79

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33758 of 2022

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Applicant :- Mahendra Kumar Seth Opposite Party :- State of U.P. Counsel for Applicant :- Indradeo Counsel for Opposite Party :- G.A.

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Hon'ble Subhash Vidyarthi,J.

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1.Heard Sri Indradeo Maurya, the learned counsel for the applicant, Sri Arun Kumar Pandey, the learned Additional Government Advocate and perused the record.

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2.The instant application has been filed seeking release of the applicant on bail in Case Crime No. 140 of 2022, under Section 8/20 Narcotic Drugs and Psychotropic Substances Act, 1985 Police Station Bhelupur, District Varanasi.

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3.The aforesaid case has been registered on the basis of an FIR lodged by a Sub-Inspector of Police on 03.05.2022 at 02:22 hours, alleging that on the basis of an information received from a Mukhbir, the police had apprehended the applicant and during his personal search, 3.75 kg. Ganja was found from a bag being carried by him in his hand. The FIR mentions the time of occurrence in the incident to be 11:45 hours on 02.05.2022.

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4.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 02.05.2022. 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.

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5.The applicant's criminal history of seven cases has been disclosed in the affidavit filed in support of the bail application, in five of which he has already been granted bail.

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6.Sri Indradeo Maurya, the learned counsel for the applicant has submitted that although the police has carried out personal search of the applicant, the search has not been carried out in accordance with the provisions of Section 50 of the N.D.P.S. Act.

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7.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.

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8.Per contra, Sri Arun Kumar Pandey, the learned AGA has opposed the prayer for grant of bail and he has submitted that the provisions Section 50 of the N.D.P.S. Act have not been followed. His submission is that search of a bag is different from search of the person.

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9.Replying to the aforesaid objection, Sri Indradeo Maurya has placed reliance on a decision of the Hon'ble Supreme Court in State of Rajasthan vs. Permanand and another, (2014) 5 SCC 345 wherein the Hon'ble Supreme Court has held that "if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application."

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10.Having considered the aforesaid submissions and keeping in view the fact that the police had conducted personal search of the applicant along with the search of the bag being carried by him but the search has not been carried out in presence of the gazette officer; that the substance recovered is below the minimum prescribed commercial quantity of Ganja and sample of the substance has not been drawn in presence of a Magistrate; that the provisions of Sections 50 and 52-A of the NDPS Act have not been followed in the present case and without making any observation on the merit of the case, I am of the view that the applicant is entitled to be released on bail in the aforesaid case.

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11.In light of the preceding discussion and without making any observation on the merit of the case, the instant bail application is allowed .

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12.Case Crime No. 140 of 2022, under Section 8/20 Narcotic Drugs and Psychotropic Substances Act, 1985 Police Station Bhelupur, District Varanasi 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:-

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

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(ii) The applicant will not influence any witness.

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(iii) The applicant will appear before the trial court on the date

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fixed, unless personal presence is exempted.

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(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.

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13.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.

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Order Date :- 8.12.2022 Ashish Pd.

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Digitally signed by ASHISH PRASAD Date: 2022.12.12 18:00:57 IST Reason: Location: High Court of Judicature at Allahabad

Mahendra Kumar Seth v. State of U.P.

Case brief

What is this about?

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Mahendra Kumar Seth v. State of U.P.

Case brief

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