Sana Ullah Vs State of U.P. Thru. Prin. Secy. Home Lko.

Neutral Citation No. - 2024:AHC-LKO:57329

Court No. - 12

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7822 of 2024

Applicant :- Sana Ullah Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Farooq Ayoob,Mansi Gupta 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 as well as learned A.G.A. and perused the record.

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2 . This is the second bail application. Vide order dated 26.02.2024, the first bail application was rejected as not pressed with a direction to the trial Court to conclude the trial, if possible, within a period of six months.

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3 . In terms of the FIR allegedly on the basis of a search carried out, from the possession of the applicant around 23 KG of Smack/Morphine was recovered from the bag being carried by him, recoveries of smaller quantities were shown against the other co-accused also. Based upon the said, the applicant was arrested and is in custody since 28.01.2023.

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While arguing the second bail application, the counsel for the applicant draws my attention to the statement of the Investigating OfÏcer recorded during trial, wherein he specifically stated that he was not aware as to whether the compliance of Section 52-A of the NDPS Act was done or not. In the light of the said, the submissions of the counsel for the applicant are that no recovery was effected in the presence of independent witnesses. He further argues that the manner of sampling was not disclosed in the FIR. He further argues

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that the mandatory directions contained in Section 52-A of the NDPS Act were not followed. He draws my attention to the FIR, wherein it was alleged that recoveries were effected from the various accused including the applicant from whom allegedly Smack contained in 23 packets were recovered, however, the manner in which the samples were drawn from them have not been indicated in the FIR. It is also not indicated that as to what was the sample size drawn from each of the recoveries effected from various co-accused. He further draws attention to the counter afÏdavit, it has been stated that the sample size of 4.086 grams was sent for FSL analysis, which was found to be Heroin. The counter afÏdavit is silent as to from which sample, the said 4.086 grams of sample was drawn. He further argues that the coaccused have been enlarged on bail vide bail orders, which are on record. He further argues that the applicant is languishing in jail since 28.01.2023 and only one witness has been examined out of total 17 witnesses proposed to be examined, as such, he has suffered substantial pre trial detention. He lastly argues that the applicant has no criminal history of an offence under the NDPS Act, as such, he may be enlarged on bail.

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5. The counsel for the applicant places reliance on the judgment of the Supreme Court in the case of Yusuf alias Asif Versus State, AIR 2023 Supreme Court 5041 as well as the latest judgment of the Supreme Court in the case of Jalaluddin Khan Versus Union of India passed in Criminal Appeal No. 3173 of 2024, wherein the Supreme Court has held that even in Special Act like UAPA "Bail is the rule and the jail is an exception".

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6. Learned A.G.A. opposed the bail prayer by arguing that very huge quantity was recovered from the applicant which cannot be planted by the authorities and considering the huge recovery, the bail application deserves to be rejected. He further argues that as against the applicant, a case has been registered under the Gangster Act after the present FIR, thus his opposition is founded on substantial and huge recovery effected from the

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applicant.

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7 . Considering the submissions made at the Bar, and the fact that the alleged recovery from the applicant is more than the commercial quantity, the test of Section 37 of the NDPS Act has to be satisfied. Section 37 of the NDPS Act came up for interpretation by the Supreme court in the case of Mohd Muslim @ Hussain vs. State (NCT of Delhi) reported in 2023 Live Law (SC) 260 , wherein the Supreme Court interpreted Section 37 of the NDPS Act 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 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

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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 enlarged on bail."

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8 . 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 Alias Asif Versus State (Supra) 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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9 . In the present case, the documents on record including the counter afÏdavit are silent as to how the recovery was effected from the recoveries which were shown from the various accused, the counter afÏdavit indicates that the FSL report pertains to one sample of size 4.086 grams, however, it is silent as to from which accused the said sample was drawn and is also silent as to whether sample was drawn from separate packets allegedly recovered. In the statement before the trial Court, P.W. 1 has specifically stated that he was not aware of compliance of Section 52-A of the NDPS Act, thus based upon these two infirmities, which are apparent, prima facie, view can be formed that the prosecution may not be able to establish the charge against the applicant. As the applicant has no criminal history, considering the law as laid down in the case of Ranjitsing Brahmajeetsing Sharma vs State Of Maharashtra & Anr : AIR 2005 SC 2277, the second test is also satisfied. Apart from the infirmities referred above, there is no likelihood of the trial being concluded in the near future and relying on the judgment of the Supreme Court in the case of Jalaluddin Khan Versus Union of India (Supra), the applicant is enlarged on bail. Accordingly, the bail application is allowed.

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10. Let the applicant Sana Ullah be released on bail in FIR/ Case Crime No. 112 of 2023, under Sections 8/21/29 NDPS Act, Police Station Kotwali Nagar, District Barabanki, on his furnishing personal bonds and two reliable sureties each of the like amount 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

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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 :- 22.8.2024 Arun

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

Sana Ullah v. State of U.P. Thru. Prin. Secy. Home Lko.

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