Allowed

Akeel Shah v. Union of India Thru. Ncb Mahanagar Lko.

Allahabad HC25 Sept 2024/4520/2024

Case brief

AI extract

What is this about?

High Court allowed bail applications of three accused persons charged with drugs offenses under NDPS Act. The court found prima facie inconsistencies in the manner of sealing and sampling of recovered charas, as the records failed to clarify how the seal was opened or how samples were drawn in compliance with statutory mandates. Due to these procedural infirmities and the applicants' lack of crimi

What did the court decide?

Applicants are released on bail by executing a personal bond with two sureties of the like amount, undertaking to attend hearings, and not committing similar offenses or tampering with evidence.

Akeel Shah Vs Union of India Thru. Ncb Mahanagar Lko. — Narcotics (NDPS) | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:66655

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Court No. - 12

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4520 of 2024 Applicant :- Akeel Shah Opposite Party :- Union Of India Thru. Ncb Mahanagar Lko. Counsel for Applicant :- Vishwa Nath Singh,Manoj Kumar Singh Counsel for Opposite Party :- Akhilesh Kumar Awasthi

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AND

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4953 of 2024 Applicant :- Abrar Ahmad @ Raju Opposite Party :- Union Of India Thru. Its Zonal Director Narcotic Control Bureau Lko. Counsel for Applicant :- Ashok Kumar Mishra Counsel for Opposite Party :- Akhilesh Kumar Awasthi

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AND

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3716 of 2024 Applicant :- Vakil Ahmad Opposite Party :- Union Of India Thru, Narcotics Control Bureau Counsel for Applicant :- Nripendra Mishra Counsel for Opposite Party :- Akhilesh Kumar Awasthi

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Hon'ble Pankaj Bhatia,J.

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1. Since all the cases arise out of the same FIR, they are being decided together.

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2. Heard learned counsel for the applicants; Shri Akhilesh Kumar Awasthi, learned counsel for the respondent/Union of India and perused the record.

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3. The applicants seek enlargement on bail in FIR No.05 of 2024, under Section 8/20, 23, 25, 29 of NDPS Act, P.S. N.C.B. Lucknow.

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4. In terms of the recovery memo, allegedly, on the basis of information received, a vehicle bearing Registration No.UP 40 R 8114 was apprehended in which three persons were present and from the said vehicle, allegedly, 1.5 kg of charas was found to be kept in a polythene bag. It was further recorded that the contraband alongwith the motorcycle on which it was kept was apprehended at the spot and the rest of the things was done at the camp office of the respondent. It was stated that 1.5 kg of the contraband recovered was sealed in a cloth and was sewn and a seal was also inscribed. A search of the applicant was also carried from whom mobile phone etc., was recovered.

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5. In the light of the said, the submission of learned counsel for

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the applicants is that as per the recovery memo, the goods were sealed and thereafter, as per the counter affidavit, the sample was drawn in the presence of the Sessions Judge as is evident from the test memo which has been filed and is on record. He argues that although the entire contraband was sealed in a cloth and a seal was inscribed as noted in the seizure memo, however, in the test memo, there is no mention as to how the samples were drawn after opening the seal. He further argues that the manner in which the sample has been drawn is contrary to the mandate of Section 52A of NDPS Act as well as the notification, as such, the applicants who have no criminal history and are in custody since 11.02.2024 may be enlarged on bail.

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6. Learned counsel for the respondent opposes the bail application by arguing that recovery of 1.5 kg from all the three accused is more than the commercial quantity prescribed which is 1 kg in the case of charas. He further argues that the sample was drawn in the presence of the Sessions Judge and the signature of the Sessions Judge are also present on the sampling filed alongwith the counter affidavit. He, thus, argues that in view of the mandate of Section 37 of NDPS Act, the bail application deserves to be rejected.

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7. Considering the arguments raised at the Bar, on perusal of the material, prima-facie, as per the recovery memo, the entire contraband was sealed in a cloth and a seal was inscribed - how the seal was opened and the sample was drawn is not clear from the memo which is relied upon by the respondent. The manner of sealing of the samples is also not mentioned. The FSL report also indicates that one duly sealed brown paper marked as P1 S1 was received which was tested and found to be positive for charas . In the present case, the sealing of the sample is not clear; the opening of the entire contraband before the trial Court is also not clear, thus, there are prima-facie inconsistencies in the manner of sampling. As such, considering the mandate 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 explained in the case of Yusuf @ Asif v. State; AIR 2023 SC 5041 , in the present case, the infirmities as pointed out with respect to sampling are prima-facie evident, thus, based upon these infirmities, a prima-facie view can be formed in favour of the applicant, thus, the applicants who have no criminal history and are in custody since 11.02.2024 are entitled to be enlarged on bail. In view thereof, the application is allowed.

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8. Let the applicants Akeel Shah, Abrar Ahmad @ Raju and

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Vakil Ahmad be released on bail in aforesaid FIR number on their furnishing a personal bond each with two sureties of the like amount each to the satisfaction of court concerned with the following conditions:

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

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(b) The applicants shall not commit any offence similar to the offence of which they are accused or suspected of the commission; and

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(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.

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Order Date :- 25.9.2024

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nishant

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Digitally signed by :- NISHANT MOHAN High Court of Judicature at Allahabad, Lucknow Bench

Akeel Shah v. Union of India Thru. Ncb Mahanagar Lko.

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Akeel Shah v. Union of India Thru. Ncb Mahanagar Lko.

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