Allowed

Jumma Khan v. Union of India through Intelligence Officer

Allahabad HC23 Mar 2023BAIL/8410/2021

Case brief

AI extract

What is this about?

In this criminal bail application, the Court granted bail to the applicant charged under the NDPS Act. The Court noted arguments that the substance was a controlled substance not strictly a narcotic but remains liable to severe punishment. Relying on Supreme Court precedent, the Court held that bail courts need not record a finding of innocence but must assess reasonable grounds. The applicant was

What did the court decide?

Released on bail with the furnishing of a personal bond with two local sureties each.

Jumma Khan Vs Union of India through Intelligence Officer — Narcotics (NDPS) | Allahabad HC (2023)

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Court No. - 86

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8410 of 2021

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Applicant :- Jumma Khan Opposite Party :- Union Of India Through Intelligence Officer Counsel for Applicant :- Vinay Kumar Singh Chandel,Avanish Kumar Srivastava,Sanjeev Kumar Asthana

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Counsel for Opposite Party :- Dileep Chandra Mathur,Anil Kumar Gupta,Krishna Agarawal

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Hon'ble Vivek Kumar Singh,J.

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Heard Sri Avinish Kumar Srivastava and Sri Siddharth Srivastava, learned counsel for applicant and Sri Krishna Agarwal, learned counsel for Union of India (Revenue Intelligence) and learned A.G.A. for the State and perused the record.

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Learned counsel for the applicant has submitted that applicant has been falsely implicated in the present case due to ulterior motive, on the basis of false and planted recovery of 17.090 kilograms of Amphetamine has been recovered from the possession of the applicant and there is no public witness of the alleged recovery. It is further contended that mandatory provision of Section 50 of N.D.P.S Act has not been complied with. At the stage of consideration of bail it cannot be decided whether offer given to the applicant and his consent obtained was voluntary.

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Submission is that the substance which has been recovered from the possession of the applicant is Amphetamine (pseudoephedrine hydrocloride), which is controlled substance and it is neither a narcotic drug nor psychotropic substance under the NDPS Act. In support of his submission drawn the attention of this Court towards an Order passed by High Court of Delhi dated 20.4.2021 passed in Bail Application No.1960 of 2020 (Nastor Farirai Ziso Vs. NCB) relevant paragraphs whereof reads as under :-

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'9. Section 9A of the NDPS Act deals with the power to control and regulate controlled substance. "Controlled substance" means any substance which the Central Government may, having regard to the available information as to its possible use in the production manufacture of narcotic drugs or psychotropic substances or to the provisions of any international Convention, by notification be a controlled in the official Gazette, declare substance. The Ministry to of Finance Department of Revenue vide its notification dated 28th December, 1999 has declared pseudo-ephedrine a controlled substance under the Act. The Central Government being of the opinion that having regard to the use of the controlled substances in the production or manufacture of any narcotic drug or psychotropic substance, it is necessary or expedient so to do in the public interest, in exercise of powers conferred by Section 9A of the Act has made the Narcotic Drugs and Psychotropic Substances (Regulation of Controlled Substance) Order, 1993, which has come into force w.e.f. 15th April, 1993.

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10. The substance alleged to have been recovered from the petitioner/accused is 19.3 Kg. of pseudoephedrine hydrochloride which is a

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controlled substance. It has been rightly submitted by the Ld. counsel for the petitioner/accused that it is neither a narcotic drug nor a psychotropic substance under the NDPS Act. The alleged offences are not punishable with death or imprisonment for life. The offence falling U/s 9A r/w section 25A of the NDPS Act is punishable with imprisonment which may extend to 10 years and also fine which may also extend to Rs. 1 Lakh and the bar of Section 37 is not attracted in the present case as the substance recovered is a controlled substance within the meaning of Section 2 (viid) of the Act.'

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The applicant has no criminal history. It is also submitted that the applicant is in jail since 3.3.2020 and he undertakes that he will not misuse liberty, if granted.

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Learned A.G.A. has opposed the prayer for bail by contending that the innocence of the applicant cannot be adjudged at pre-trial stage who is involved in supplying contraband, therefore, the applicant does not deserve any indulgence. In case the applicant is released on bail he will again indulge in similar activity. The "reasonable grounds" mentioned in Section 37(1)(b)(ii) of NDPS Act mean something more than prima facie ground. It implies substantial probable causes for believing that accused is not guilty of the offence charged and points to existence of such facts and circumstances which are sufficient to hold that accused is not guilty.

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However the Apex Court in the Case of Union of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798 has held that the court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.

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Considering the facts of the case and keeping in mind the arguments advanced on behalf of the parties, the ratio of the Apex Court's judgment in the case of Union of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798 , larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/ State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail.

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Let the applicant Jumma Khan involved in Case Crime No.04 of 2020, under Section 9A/25A of the Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station D.R.I., District Varanasi be released on bail on his furnishing a personal bond with two local sureties each in the like amount to the satisfaction of the court concerned with the following condition:-

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(i) 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 of the Indian Penal Code;

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(ii) In case, the applicant misuses the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the 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 of the Indian Penal Code.

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(iii) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

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The trial court is directed to expedite the trial of the present case and conclude the same expeditiously preferably within a period of one year from the date of production of a certified copy of this order, if there is no legal impediment.

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Order Date :- 23.3.2023 Dev & CS/-

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Digitally signed by :- DEV PRAKASH High Court of Judicature at Allahabad

Jumma Khan v. Union of India through Intelligence Officer

Case brief

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Jumma Khan v. Union of India through Intelligence Officer

Case brief

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