Satish Vs Central Bureau of Narcotics C.B.N. Thru. Deputy Narcotics Commissioner Lko.

Neutral Citation No. - 2024:AHC-LKO:34804

Court No. - 12

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 872 of 2024

Applicant :- Satish Opposite Party :- Central Bureau Of Narcotics C.B.N. Thru. Deputy Narcotics Commissioner Lko. Counsel for Applicant :- Ram Naresh Yadav, Vineet Kumar Chaurasia Counsel for Opposite Party :- S M Singh Royekwar

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Hon'ble Pankaj Bhatia,J.

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Heard learned counsel for the applicant as well as Sri S.M. Singh Royekwar, learned counsel appearing on behalf of the Central Bureau of Narcotics and perused the record.

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2 . In terms of the FIR alleged on the basis of a search carried out from the two persons, from the bag being carried out by the applicant allegedly 500 grams of Morphine was recovered.

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3. In the light of the said allegation, the submissions of the counsel for the applicant is that even as per the recovery memo, the applicants were apprehended near a place called 'Anandi Lawn Mod' and all the other search were carried out at a place which is at a distance and is distinct. He further argues that even as per the FIR, the Central Bureau of Narcotics (in short CBN) had carried out the further proceedings at 2.30 PM in the OfÏce situated Mahanagar, Lucknow, which according to the applicant is at a distance of around 15 KMs. He further argues that the applicant was arrested after the search was completed at the ofÏce at Mahanagar, Lucknow. He further argues that the co-accused have been enlarged on bail, although the applicant does not claim parity with the said co-accused, however, he takes cue from the reference in the said order particularly in respect of trial not happening in a proper manner and as contained in para 6 & 7 of the order dated 04.01.2024, to press this bail

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application. He further argues that the applicant is in custody since 06.02.2022 and he has no criminal history of an offence under the N.D.P.S. Act, as such, he may be enlarged on bail.

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4 . Learned counsel appearing on behalf of the CBN opposes the submissions advanced by the counsel for the applicant by arguing that under the law or under the Rules, there is no mention that the paper work should also be done at the spot of recovery, thus no fault can be found on that aspect. He further argues that in terms of the FSL report, which is contained at Annexure No. 10 to the counter afÏdavit, the product which was sent for analysis was found to be containing "Morphine, 6-monoacetylmorphine, Alprazolam and Acetaminophen". He further argues that the testimony of P.W. 1 has been completed and that of P.W. 2 is going on. He however does not dispute that the applicant has no criminal history of an offence under the NDPS Act. He thus argues that based upon the recovery which according to him in accordance with law and the sample report, no case for bail is made out particularly when the recovery is more than the commercial quantity prescribed which is 250 grams in the case of Morphine.

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5 . In rejoinder to the said argument, the counsel for the applicant argues that as per the recovery memo allegedly a sample size of 5 grams was drawn, which was marked as Annexure Nos. A-1 & A-2, whereas, the analysis report records the total weight of the sample as 4.62 grams with polythene pouch as is evident from Annexure No. 10, thus there is a substantial variance in the two sample sizes, the one which was sent as A-1 and the one which was analyzed as A-2. He further argues that the testimony of P.W. 2 has not taken place so far and the testimony of P.W. 1 has not been completed so far, as such, there is no likelihood of the trial being concluded in the near future, as such, the applicant may be enlarged on bail.

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6 . Considering the fact that the recovery alleged is more than the commercial quantity the test of Section 37 of the NDPS act has to be satisfied. The

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true intent and interpretation of Section 37 of the Act was considered by Hon'ble 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 (paragraphs 18, 19 and 20) :-

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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 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

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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 . In the light of the said interpretation as recorded above, prima facie, in the present case, the sample size sent as A-2 and sample size as verified in the FSL report contained substantial difference particularly when the same is weighed along with the polythene in which, it was contained, thus based upon the analysis of the samples size A-2 coupled with the fact that even in the said sample, different substances were observed which include Alprazolam and Acetaminophen for which, the quantity prescribed to be different. All these prima facie discrepancies may come on the way of the prosecution for establishing the offence against the applicant. Thus, prima facie, the first test as specified and laid down in the case of Mohd. Muslim @ Hussain Vs. State (Supra) is satisfied in favour of the applicant. It is clarified that these observations are only for disposal of the present bail application and would not effect the trial. Finding of the first test under Section 37 of the NDPS Act is satisfied by the applicant, the second test is also satisfied in favour of the applicant as the applicant has no criminal history of an offence under the NDPS Act.

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8 . In view of the reasoning as recorded above, 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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9 . Let the applicant Satish be released on bail in FIR/ Case Crime No. 01 of 2022, under Sections 8/21(C) & 8/29 NDPS Act, Police Station C.B.N., District Lucknow, on his 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 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

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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 ofÏcer or tamper with the evidence.

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Order Date :- 6.5.2024 Arun

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

Satish v. Central Bureau of Narcotics C.B.N. Thru. Deputy Narcotics Commissioner Lko.

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Satish v. Central Bureau of Narcotics C.B.N. Thru. Deputy Narcotics Commissioner Lko.

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