The court allowed bail applications filed by two accused persons charged under the NDPS Act, finding that the sample was not drawn in a magistrate's presence as mandated by Section 52A and that the applicants had no prior criminal history.
Released on bail with personal bond and two sureties.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Neutral Citation No. - 2024:AHC-LKO:68329
Court No. - 12
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3105 of 2024 Applicant :- Dheeraj Verma Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home Lko. Counsel for Applicant :- Gyan Singh,Ana Fatma,Anamika Singh,Mohd. Salman,Shyam Singh Counsel for Opposite Party :- G.A.
AND
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3967 of 2024 Applicant :- Vinay Tiwari @ Golu Tiwari Opposite Party :- State Of U.P Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Puttu Lal Misra Counsel for Opposite Party :- G.A.
Hon'ble Pankaj Bhatia,J.
1. Since both the cases arise out of same FIR, they are being decided together.
2. Heard learned counsel for the applicants, learned AGA and perused the record.
3. The applicants seek enlargement on bail in FIR No.361 of 2023, under Section 8/20 of NDPS Act, P.S. Sangipur, District Pratapgarh.
4. In terms of the FIR, allegedly, on the basis of information received, a search was carried out and from a Bolero vehicle, 25 kg of Ganja was found concealed and was recovered in six packets. It was stated that out of the six packets, sample was drawn and 50 gm sample was prepared which was sealed in a cloth and was sent for analysis.
5. It is argued by learned counsel for the applicant that there were no independent witnesses to the search. He further argues that the sample was not done in the presence of a magistrate as is required to be done in terms of the mandate of Section 52A of NDPS Act. He lastly argues that the applicants have no criminal history and even the FSL report has not come so far.
6. Learned AGA has opposed the bail application by arguing that considering the mandate of Section 37 of NDPS Act and the recovery to be more than commercial quantity, the bail application deserves to be rejected. He, however, does not dispute that the applicants have no criminal history of an offence under the NDPS Act.
7. Considering the submissions made at the Bar and the scope of Section 37 of NDPS Act as explained in the case of Mohd Muslim @ Hussain v. State (NCT of Delhi); 2023 LiveLaw (SC) 260 and the effect of not following the mandate of Section 52A of NDPS act as considered in the case of Yusuf @ Asif v. State; AIR 2023 SC 5041 , as, prima-facie, in the present case, the sample has not been drawn in the presence of magistrate, as such, the first test of Section 37 of NDPS Act is satisfied in favour of the applicant.
8. As the applicants have no criminal antecedents, the second test of Section 37 of NDPS Act is also satisfied in favour of the applicant in view of the law as explained in the case of Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr.; (2005) 5 SCC 294 .
9. Considering the aforesaid reasoning, the applicants are entitled to be enlarged on bail. In view thereof, the applications are allowed.
10. Let the applicants Dheeraj Verma and Vinay Tiwari @ Golu Tiwari be released on bail in aforesaid FIR number on their furnishing a personal bond with two sureties of the like amount each to the satisfaction of court concerned with the following conditions:
(a) The applicants shall execute a bond to undertake to attend the hearings;
(b) The applicants shall not commit any offence similar to the offence of which they are accused or suspected of the commission; and
(c) The applicants 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.
Order Date :- 3.10.2024 nishant
Digitally signed by :- NISHANT MOHAN High Court of Judicature at Allahabad, Lucknow Bench
3 issues framed by the court
Whether bail should be granted when the sample was not drawn in the presence of a magistrate violating Section 52A of NDPS Act.
Whether the applicant's lack of criminal antecedents satisfies the second test of Section 37 of NDPS Act.
Whether the bail application is maintainable considering the quantum of recovery and procedural lapses.
Colour shows how this judgement treated each authority
Mohd Muslim @ Hussain v. State (NCT of Delhi)Explained¶13
Mohd Muslim @ Hussain v. State (NCT of Delhi); 2023 LiveLaw (SC) 260
Yusuf @ Asif v. StateExplained¶13
Yusuf @ Asif v. State; AIR 2023 SC 5041 · Who else cites this
Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr.Applied¶14
Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr.; (2005) 5 SCC 294 · Who else cites this
2 provisions across 1 enactments
Dheeraj Verma
Vinay Tiwari @ Golu Tiwari
State Of U.P.
Pankaj Bhatia
As recorded by the court registry
4 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
