Allowed

Kamreyaz Alam Thru. Mother Nurjaha Begam v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

Allahabad HC19 Mar 2024/1324/2023

Case brief

AI extract

What is this about?

Criminal Revision against bail rejection and appeal dismissal for a juvenile charged under NDPS Act. Court allowed revision, setting aside impugned orders due to procedural illegities in seizure and sample drawing under N.D.P.S. Act.

What did the court decide?

Revision allowed. Impugned orders set aside. Petitioner released on bail subject to personal bond, sureties, and reporting conditions.

Kamreyaz Alam Thru. Mother Nurjaha Begam Vs State of U.P… — Narcotics (NDPS) | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:24212

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Court No. - 27

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Case :- CRIMINAL REVISION No. - 1324 of 2023 Revisionist :- Kamreyaz Alam Thru. Mother Nurjaha Begam Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another

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Counsel for Revisionist :- Shamshad Ahmad,Mohammad Shahzad Ahmad

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Counsel for Opposite Party :- G.A.

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Hon'ble Subhash Vidyarthi,J.

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Heard Sri Mohammad Shahzad Ahmad, the learned counsel for the revisionist, Ms. Charu Singh, the learned A.G.A appearing on behalf of the State and perused the record.

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2.The instant criminal revision has been filed under Section 102 of the Juvenile Justice (Care and Protection) Act, 2015, challenging the validity of order dated 28.08.2023 passed by the Juvenile Justice Board, Lucknow rejecting the bail application of the revisionist and the judgment and order dated 27.10.2023 passed by the Additional District and Session Judge/ Special Judge (POCSO Act), Court No. 1, Lucknow, dismissing the Criminal Appeal No. 225/2023, CNR No. UPLKO10171182023, filed by the revisionist against rejection of his bail application.

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The aforesaid case was registered on the basis of an F.I.R No. 136 of 2023, under Sections 8/20 of Narcotic Drugs and Psychotropic Substances (NDPS) Act, registered at P.S GRP Charbagh, District Lucknow. It is stated in the F.I.R that on the basis of information received from a Mukhbir, the revisionist was intercepted from a railway platform no.4 and 19 packets, each containing 500 grams Charas, was recovered from a bag being carried by a revisionist. The F.I.R states that the recovery was made in presence of Deputy Superintendent of Police, GRP

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Charbagh, Lucknow, who is a Gazetted Officer. Small quantity of the substance was recovered from taken out from each of the 19 packets so as to make a sample of 50 g.

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A supplementary affidavit has been filed on behalf of the revisionist annexing there with a copy of a Social Inquiry Report submitted by the District Probation Officer, which does not contain any such recommendation as would warrant release of the revisionist on bail.

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The learned counsel for the revisionist has submitted that the samples were not drawn in accordance with the guidelines issued by the Government of India, which provide that two samples weighing 24 grams each will be drawn from all the packets and that the recovery memo does not bear the signatures of any gazetted officer.

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The narration made in the recovery memo does not indicate that the officer making the alleged recovery had given any option to the accused persons of his search being carried out in presence of a Magistrate. The Gazetted Officer, who was allegedly called by the Officers making the recovery, is himself a Police Officer and the recovery made in presence of a Police Officer does not fulfill the conditions of Section 50 of N.D.P.S Act requiring search being carried out in the presence of a Magistrate or a Gazetted Officer, which are meant to ensure that a search has been made in a proper manner in presence of an independent Officer. An officer of a Police is not an independent Officer and any search made in presence of such a Gazetted Officer does not fulfill the requirement of the Section 50 of the N.D.P.S Act.

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Further, as the aforesaid Gazetted Officer has not signed the recovery memo, it cannot be said that the search and the recovery was made in presence of the Gazetted Officer. There is

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apparent illegality in taking samples as the samples have not been drawn in the presence of a Magistrate as is provided in section 52(A) of the N.D.P.S Act

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Keeping in the aforesaid facts, I am of the view that the revisionist-juvenile is entitled to be release on bail and the revisionist deserved to be allowed.

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Accordingly, the revision is allowed . The order dated 28.08.2023 passed by the Juvenile Justice Board, Lucknow rejecting the bail application of the revisionist and the judgment and order dated 27.10.2023 passed by the Additional District and Session Judge/ Special Judge (POCSO Act), Court No. 1, Lucknow, dismissing the Criminal Appeal No. 225/2023, CNR No. UPLKO10171182023, are hereby set aside.

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Let the revisionist- Kamreyaz Alam Thru. Mother Nurjaha Begam be released on bail in F.I.R No. 136 of 2023 under Sections 8/20 of Narcotic Drugs and Psychotropic Substances (NDPS) Act, registered at P.S GRP Charbagh, District Lucknow, upon his guardian furnishing a personal bond with two solvent sureties of his relatives, each in the like amount to the satisfaction of the Juvenile Justice Board, Lucknow, subject to the following conditions:-

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(i) the natural guardian will furnish an undertaking that upon release on bail the juvenile will not be permitted to come into contact or association with any known criminal or allowed to be exposed to any moral, physical or psychological danger and further that the guardian will ensure that the juvenile will not indulge in any criminal activity;

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(ii) natural guardian will further furnish an undertaking to the effect that the juvenile will pursue his study at the appropriate level which he would be encouraged to do.

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(iii) juvenile accompanied by his natural guardian, will report to

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the Probation Officer on the first working day of every calendar month. The D.P.O. shall maintain a diary recording their attendance.

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(iv) The District Probation Officer will keep strict vigil on the activities of the juvenile and regularly draw up his social investigation report that would be submitted to the Juvenile Justice Board, Lucknow.

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It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court/J.J.Board shall be absolutely free to arrive at its independent conclusions on the basis of evidence led, uninfluenced by any finding or observation whatsoever in this order.

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(Subhash Vidyarthi,J.)

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Order Date :- 19.3.2024 Preeti.

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Digitally signed by :- PREETI GAUTAM High Court of Judicature at Allahabad, Lucknow Bench

Kamreyaz Alam Thru. Mother Nurjaha Begam v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

Case brief

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Kamreyaz Alam Thru. Mother Nurjaha Begam v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

Case brief

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What did the court decide?

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