Allowed

Babali @ Balvinder v. State of U.P. Thru. Prin. Secy. Home Lko.

Allahabad HC9 Jul 2024/1813/2024

Case brief

AI extract

What is this about?

The High Court allowed a bail application under Section 37 of the NDPS Act, holding that the search violated mandatory procedural requirements under Section 52-A and lack of independent witnesses. Consequently, the prosecution could not prima facie establish guilt, and the applicant's clean record satisfied the conditions for bail.

What did the court decide?

Applicant Babali @ Balvinder released on bail with personal bond and two sureties, subject to conditions to attend hearings, not commit new offences, and not influence witnesses or tamper with evidenc

Babali @ Balvinder Vs State of U.P. Thru. Prin. Secy… — Narcotics (NDPS) | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:46628

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Court No. - 12

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1813 of 2024

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Applicant :- Babali @ Balvinder Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Santosh Kumar Kanaujia,Ramakar Shukla,Subodh Kumar Pandey Counsel for Opposite Party :- G.A.

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Hon'ble Pankaj Bhatia,J.

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Heard learned counsel for the applicant and learned A.G.A. for the and perused the record.

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The accused-applicant seeks bail in Case Crime No.08 of 2024 under sections 8/22 of N.D.P.S. Act, Police Station Tikonia, District Lakhimpur Kheri.

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In terms of the F.I.R., it was stated that on the basis of the information received, a search was carried out and from the pocket of the applicant, allegedly 110 grams of Alprazolam powder was recovered from the pocket of the applicant.

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Learned counsel for the applicant has argued that the recovery of the alleged substance was not effected in accordance with law. There were no independent witnesses to the search. It is further argued that the mandate of Section 52-A as well as two standing orders were not followed. He lastly argued that the applicant is in custody since 14.1.2024 having no criminal history of an offence under the N.D.P.S. Act or any other offence, hence, the applicant may be enlarged on bail.

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Learned A.G.A. opposed the prayer for bail by arguing that the recovery is more than the

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commercial quantity, which is 110 grams in the case of Alprazolam, as such the bail application has to be rejected.

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Considering the submissions made at the bar, as the recovery is of the commercial quantity, the twin test of Section 37 of the N.D.P.S.Act has to be satisfied.

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Hon'ble Supreme Court had the occasion to deal with the aspect of Section 37 and the conditions prescribed therein in the case of Mohd Muslim @ Hussain vs. State (NCT of Delhi) reported in 2023 Live Law (SC) 260 . While dealing with the scope of Section 37, Hon'ble Apex Court observed as under:-

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"18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is "not guilty of such offence" and that he is not likely to commit any offence while on bail. What is meant by "not guilty" when all the evidence is not before the court? It can only be prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two

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conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co-operating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws – be balanced against the public interest.

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19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.

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20. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused's guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India vs. Ratan Malik19). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having 19 (2009) 2 SCC 624 regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be

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enlarged on bail."

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in the present case, on account of not following the mandate of Section 52-A of the N.D.P.S. Act and there are no independent witness for search as such based upon which a view can be formed that the prosecution may not be able to establish the offence against the applicant in view of the judgement of the Hon'ble Supreme Court in the case of Yusuf @ Asif Vs. State (supra). Thus, the first test specified under Section 37 of the N.D.P.S. Act is satisfied in favour of the applicant.

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As regards the second of the twin test prescribed under Section 37 of the N.D.P.S. Act is concerned, as the applicant has no criminal history as such in view of the law laid down in the case of Ranjitsing Brahmajeetsing Sharma vs State Of Maharashtra & Anr : AIR 2005 SC 2277 , the second of the twin tests as specified under Section 37 of the NDPS Act is also satisfied in favour of the applicant.

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For all the reasons recorded above, the applicant is entitled to be enlarged on bail particularly when the twin tests prescribed under Section 37 of the NDPS Act is also satisfied as the applicant has no criminal history of offence under the provisions of N.D.P.S.Act and is languishing in jail since 14.1.2024.

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Thus, the bail application is allowed.

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Let the applicant Babali @ Balvinder be released on bail in aforesaid first information report number subject to his furnishing a personal

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bond and two reliable sureties each of the like amount to the satisfaction of the court below concerned with the following conditions: -

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(a) The applicant shall execute a bond to undertake to attend the hearings;

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(b) The applicant shall not commit any offence similar to the offence of which he is accused or suspected of the commission; and

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(c) The applicant shall not directly or indirectly make any 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 or to any police ofÏcer or tamper with the evidence.

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Order Date :- 9.7.2024

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Shukla

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Digitally signed by :- ASHUTOSH KUMAR SHUKLA High Court of Judicature at Allahabad, Lucknow Bench

Babali @ Balvinder v. State of U.P. Thru. Prin. Secy. Home Lko.

Case brief

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Babali @ Balvinder v. State of U.P. Thru. Prin. Secy. Home Lko.

Case brief

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