Rajesh Gond @ Rajesh Ramsunder Gond Vs State of U.P. Thru. Prin. Secy. Home Lko.

Neutral Citation No. - 2024:AHC-LKO:65317

Court No. - 12

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6787 of 2024

Applicant :- Rajesh Gond @ Rajesh Ramsunder Gond Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Onkar Singh Counsel for Opposite Party :- G.A.

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connect with

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6099 of 2024

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Applicant :- Vijay Kumar / Vijay Harindra Ray Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Home Civil Sectt. Lko Counsel for Applicant :- Amrendra Nath Tripathi,Rahul Rai Counsel for Opposite Party :- G.A.

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and

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6839 of 2024

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Applicant :- Pradip Kumar Gupta Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home Deptt. U.P. Lko. Counsel for Applicant :- Prashant Dubey,Utkarsh Misra,Vivek Kumar Verma Counsel for Opposite Party :- G.A.

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Hon'ble Pankaj Bhatia,J.

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

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2 . In terms of the FIR, it was alleged that an information was received that several persons were being allured to commit theft and they were also carrying contraband, based upon the said information, three persons, who are the applicants,

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were apprehended. It is further appeared from the FIR that the three persons were apprehended. First FIR being FIR Nos. 100 of 2024 and 101 of 2024 were registered under Section 420 IPC alleging that from the applicants, certain notes in which first note and the last note were correct and the other notes were forged, were recovered. In all the said cases, the applicants were enlarged on bail by this Court vide order dated 21.06.2024. Thus three FIRs were registered on the same day being FIR No. 100 of 2024 and 101 of 2024 under Section 420 IPC, and third FIR being FIR No. 102 of 2024 was lodged under the NDPS Act, in which allegedly 1150 grams of Charas from the applicant no. 1, 1250 grams of Charas from the applicant no. 2 and 1100 grams of Charas from the applicant no. 3 were apprehended.

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3 . The submission of the counsel for the applicant is that there were no independent witnesses to the search, samples were not drawn in terms of the mandate of Section 52-A of the NDPS Act. It is thus proposed to be argued that the applicants were apprehended and were linked falsely. It is further argued that the applicants have no criminal history of an offence under the NDPS Act and they are in custody since 25.03.2024.

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4. Learned A.G.A. opposed the bail prayer by arguing that as the recovery is more than the commercial quantity, the bail application deserves to be rejected in view of the bar under Section 37 of the NDPS Act.

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5 . Section 37 of the NDPS Act was interpreted by the Supreme Court in the case of Mohd Muslim @ Hussain vs. State (NCT of Delhi) reported in 2023 Live Law (SC) 260 to the following effect:-

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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

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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 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)

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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 enlarged on bail."

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6 . The effect of not following the mandate of Section 52-A of the NDPS Act was considered by the Supreme Court in the case of Yusuf @ Asif Vs. State : Criminal Appeal No.3191 of 2023 arising out of S.L.P.(Crl.) No.3010 of 2023 to the following effect:-

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"Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under sub-sections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted ofÏcer is not sufÏcient compliance of the mandate of subsection (2) of Section 52A of the NDPS Act.

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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 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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7. In the present case, prima facie , the mandate of Section 52-A of the NDPS Act has not been followed. There are no independent witnesses to the search, as such, a prima facie can be formed that the prosecution may not be able to establish the offence based upon these discrepancies. As the applicants have no criminal history of an offence under the NDPS Act, the second test of Section 37 of the NDPS Act is also satisfied in favour of the applicants.

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8 . For the reasoning recorded above, the applicants who are in custody since 25.03.2024 are enlarged on bail. Accordingly, the bail application is allowed.

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9. Let the applicants Rajesh Gond @ Rajesh Ramsunder Gond, Vijay Kumar / Vijay Harindra Ray and Pradip Kumar Gupta be released on bail in FIR/ Case Crime No. 102 of 2024, under Sections 8/20 NDPS Act, Police Station Purakalendra, District Ayodhya, on their furnishing personal bonds and two reliable sureties each in the like amount to the satisfaction of the 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

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person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to any police ofÏcer or tamper with the evidence.

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Order Date :- 20.9.2024 Arun

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

Rajesh Gond @ Rajesh Ramsunder Gond v. State of U.P. Thru. Prin. Secy. Home Lko.

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Rajesh Gond @ Rajesh Ramsunder Gond v. State of U.P. Thru. Prin. Secy. Home Lko.

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