Bail application by Dhruv Kumar in a narcotics case. The court granted bail applying the principle of parity with a co-accused previously released by a coordinate bench, stating that strict compliance with Section 37 conditions is satisfied.
Release on bail by furnishing a personal bond with two sureties in a like amount, subject to standard conditions.
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Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4772 of 2022
Applicant :- Dhruv Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Yogesh Kumar Srivastava,Noor Muhammad,Som Veer Counsel for Opposite Party :- G.A.
Hon'ble Mohd. Faiz Alam Khan,J.
Counter affidavit filed on behalf of the State and rejoinder affidavit filed by the applicant are taken on record.
Heard Shri Yogesh Kumar Srivastava, learned counsel for the accused-applicant as well as learned A.G.A. for the State and perused the record.
This bail application has been moved by the accused/applicant- Dhruv Kumar for grant of bail, in Case Crime No.835 of 2021, under Section 8/22 of NDPS Act at Police Station Etmaddaula, District Agra, during trial.
Learned counsel for the accused-applicant while pressing the bail application submits that the applicant has been falsely implicated in this case and nothing incriminating has been recovered from the possession of the applicant.
It is further submitted that as per the version of the incident stated in the first information report, police party was having prior information about the possession of the contraband by the applicant and other co-accused persons, however, no serious effort has been made by the police party to procure independent public witnesses and thus recovery as well as arrest of the applicant and of other co-accused persons is vitiated in absence of independent public witness.
It is further submitted that mandatory provisions of Section 50 of the N.D.P.S. Act has not been complied with by the police, therefore, the recovery, made in violation of Section 50 of the N.D.S.P. Act, is void ab initio . It is also submitted that the police party has also failed to comply the provisions of Section 42 of the N.D.P.S. Act as the information has not been reduced into writing.
It is vehemently submitted that three persons are said to have been arrested by the police on the relevant date and time
namely Umesh Pachauri, Majeed Khan and the instant applicant Dhruv Kumar and from their possession 510 grams, 680 grams and 630 grams of the diazepam powder is stated to have been recovered. While referring to the order of co-ordinate Bench dated 28.01.2022 passed in Criminal Misc. Bail Application No.871 of 2022 pertaining to co-accused Umesh Pachauri, it is submitted that similarly placed co-accused has been granted bail and said order has not been challenged at any higher forum and on the basis of principles of parity, the applicant be also released on bail.
It is further submitted that the applicant is in jail in this case since 20.12.2021 and the applicant is having a criminal history of one case, which has been explained in para-6 of the rejoinder affidavit, wherein also the applicant has been granted bail.
Learned A.G.A., however, opposes the prayer of bail of the applicant on the ground that the applicant has been apprehended along with 630 grams of diazepam powder, which is commercial quantity and having regard to the stringent condition mentioned in Section 37(1)(b) of the N.D.P.S. Act, he is not entitled to be released on bail.
Having heard learned counsel for the parties and having perused the record, it is evident that the police raid was conducted on a premises, where the instant applicant and other co-accused persons namely Umesh Pachauri and Majeed Khan were found in possession of 510 grams and 680 grams of diazepam powder while the instant applicant Dhruv Kumar has been found in possession of 630 grams of the diazepam powder. Perusal of the order dated 28.01.2022 passed in Criminal Misc. Bail Application No.871 of 2022 pertaining to co-accused Umesh Pachauri would reveal that the co-ordinate Bench has elaborately discussed the law laid down by the Hon'ble Apex Court in Union of India vs. Shiv Shankar Keshari , (2007) 7 SCC 798 and Arif Khan @ Agha Khan vs. State of Uttarakhand (2018) 18 SCC 380 . It is observed that while considering the application for bail with reference to Section 37 of the N.D.P.S. Act, the Court is not called upon to record a finding that the accused is not guilty and the purpose of Section 37 of the N.D.P.S. Act is limited only for considering the release of the accused on bail and in that background the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and record its satisfaction about the existence of such grounds. It is not in dispute that this order has not been challenged at any higher forum. The instant applicant and other co-accused persons namely Umesh Pachauri and Majeed Khan have been arrested in a single incident and in the considered opinion of this Court,
having regard to the principle of parity, the facility of bail could be extended to the instant applicant also.
Having regard to the facts and circumstances of the case as well as the law mentioned in bail order of Umesh Pachauri (supra), in the considered opinion of this Court, the conditions as provided under Section 37(i)(b) of the N.D.P.S. Act stands satisfied.
In view of above, in the considered opinion of this Court, keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, submissions of the learned counsel for the parties and without expressing any opinion on the merits of the case, I am of the considered view that applicant has made out a case for bail. The bail application is thus allowed .
Let the accused/applicant- Dhruv Kumar involved in abovementioned case, be released on bail on his furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:-
(i) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial.
(ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.
(iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity, status and residence proof of the applicant and sureties be verified by the Court concerned before the bonds are accepted.
Observations made herein-above by this court are only for the purpose of disposal of this bail application and shall not be construed as an expression on the merits of the case.
Order Date :- 22.3.2022 Anupam S/-
Digitally signed by ANUPAM SINGH PATEL Date: 2022.03.22 17:47:55 IST Reason: Location: High Court of Judicature at Allahabad
2 issues framed by the court
Whether bail should be granted to the applicant under Section 37 of the NDPS Act when the bail of similarly situated co-accused has already been allowed.
Whether the alleged procedural violations of Section 50 and Section 42 of the NDPS Act vitiate the case sufficiently to grant bail.
Colour shows how this judgement treated each authority
Union of India vs. Shiv Shankar KeshariReferred¶15
Union of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798 · Who else cites this
Arif Khan @ Agha Khan vs. State of UttarakhandReferred¶15
Arif Khan @ Agha Khan vs. State of Uttarakhand, (2018) 18 SCC 380 · Who else cites this
5 provisions across 1 enactments
Dhruv Kumar
State of U.P.
Mohd. Faiz Alam Khan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
