In a bail application under the NDPS Act, the High Court allowed release after observing that mandatory provisions for sampling narcotics in the presence of a Magistrate were not followed, thus requiring the applicant's release.
Release on bail by furnishing a personal bond and two sureties each in the like amount to the court below.
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Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48804 of 2021
Applicant :- Satya Prakash Gaur Opposite Party :- State of U.P. Counsel for Applicant :- Mohd. Kalim,Mary Puncha (Sheeb Jose),Ram Shiromani Yadav Counsel for Opposite Party :- G.A.
Hon'ble Subhash Vidyarthi,J.
1.Heard Sri Ram Shiromani Yadav, the learned counsel for the applicant, Sri D.K. Srivastava, the learned Additional Government Advocate and perused the record.
2.The instant application has been filed seeking release of the applicant on bail in Case Crime No. 135 of 2021, under Sections 8/20/60(2) Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station Madihan, District Mirzapur.
3.The aforesaid case has been registered on the basis of an FIR lodged by the Inspector, STF, U.P. Lucknow alleging that on an information received from Mukhbir, a truck which was being driven by the applicant, was intercepted. 105 packets kept in 21 plastic sacks each containing 05 kg. Ganja were recovered from the applicant. As per the FIR averments, three samples weighing 300 and 400 grams each were prepared after taking of small quantity of substance from each of the five packets.
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 30.08.2021. 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.
5.The State has filed a counter affidavit stating that the applicant has been arrested along with a huge quantity of Ganja and the applicant is not entitled to be released on bail.
6.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.
7.Having considered the aforesaid facts and circumstances, prima facie it appears from the narration made in the FIR itself that although the substance recovered was packed in 105 packets, only three samples have been drawn from one. There is nothing on record to indicate that the samples have been drawn in presence of a Magistrate.
8.Keeping in view the aforesaid facts, prima facie it appears that the mandatory provisions of Section 50 and 52-A of the NDPS Act and the Standing Order No.1 of 1989 issued by the Central Government and the guideline issued by Hon’ble the Supreme Court in Union of India vs. Mohan Lal , (2016) 3 SCC 379 have not been followed in the present case and also keeping in view the aforesaid fact, I am of the view that the applicant is entitled to be released on bail.
9.In light of the preceding discussion and without making any observation on the merit of the case, the instant bail application is allowed .
10.Let the applicant Satya Prakash Gaur be released on bail in Case Crime No. 135 of 2021, under Sections 8/20/60(2) Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station Madihan, District Mirzapur 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:-
(i) The applicant will not tamper with the evidence during the trial.
(ii) The applicant will not influence any witness.
(iii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
(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.
11.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.
Order Date :- 5.12.2022 Ashish Pd.
Digitally signed by ASHISH PRASAD Date: 2022.12.09 10:10:40 IST Reason: Location: High Court of Judicature at Allahabad
3 issues framed by the court
Whether the applicant is entitled to bail when mandatory provisions regarding sampling of narcotic evidence were not followed.
Whether the failure to draw samples in the presence of a Magistrate vitiates the bail application.
Whether the applicant is eligible for release on bail in NDPS Case Crime No. 135 of 2021.
Colour shows how this judgement treated each authority
Union of India vs. Mohan LalReferred¶12
Union of India vs. Mohan Lal, (2016) 3 SCC 379 · Who else cites this
2 provisions across 2 enactments
Satya Prakash Gaur
State of U.P.
Subhash Vidyarthi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
