Sonu Vs State of U.P. Thru. Prin. Secy. Home Deptt. Lko.

Neutral Citation No. - 2024:AHC-LKO:48214

Court No. - 12

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2271 of 2024

Applicant :- Sonu Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. Counsel for Applicant :- Gulam Rabbani Counsel for Opposite Party :- G.A.

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Hon'ble Pankaj Bhatia,J.

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

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2 . The applicant seeks enlargement on bail in FIR No.440 of 2023, under Section 8/21 of the NDPS Act, Police Station Satrikh, District Barabanki.

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3. In terms of the FIR, it was alleged that on a search carried out the applicant was apprehended with 255 grams of morphine kept in a polythene of his pocket.

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The submission of the Counsel for the applicant is that the mandates of Sections 50 and 52-A of the NDPS Act has not been followed and there are no independent witness to the search. He further argues that the applicant has no criminal offence under the NDPS Act, as such, the applicant may be enlarged on bail.

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5 . Learned A.G.A. vehemently opposed the bail prayer by arguing that the recovery is more than the commercial quantity prescribed, which is 250 grams in the case of morphine, and as such, the test of Section 37 of the NDPS Act has to be satisfied.

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6 . The twin conditions specified under Section 37 of NDPS Act were considered in view of the law laid down in the case of Mohd Muslim @ Hussain v. State (NCT of Delhi); 2023 LiveLaw (SC) 260 wherein the Supreme Court has 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 a prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the general

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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 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 Malik). 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 enlarged on bail."

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7 . The fact of not following the mandate of Section 52-A of the NDPS Act has been explained in the case of Yusuf alias Asif vs State; AIR 2023 SC 5041 wherein, the Hon'ble Supreme Court had observed that non-compliance of sampling process as prescribed under Section 52-A of the NDPS Act would lead the trial being vitiated. The relevant para reads as under:

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" 16 . In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated."

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8 . Considering the law as explained in the abovesaid two judgments, in the present case, the mandate of Section 50 and 52-A of the NDPS Act has not been followed and there are no independent witness to the search, as such, the infirmities can lead the forming a prima facie opinion that the prosecution may not be able to establish the offence against the applicant.

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9 . Considering the abovesaid reason coupled with the fact that the applicant has no criminal case and is in custody since 27.10.2023, I am of the view that the applicant is entitled to be released on bail. Accordingly, the bail application is allowed .

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10. Let the applicant Sonu be released on bail in the aforesaid first information report number on his furnishing personal bonds and two reliable sureties of the like amount each to the satisfaction of the court 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 officer or tamper with the evidence.

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Order Date :- 16.7.2024 akverma

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Digitally signed by :- ASHOK KUMAR VERMA High Court of Judicature at Allahabad, Lucknow Bench

Sonu v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko.

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