Mo. Raj Vs Union of India Thru. Narcotic Control Bureau (N.C.B.) Lko.

Neutral Citation No. - 2024:AHC-LKO:20461

Court No. - 13

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 876 of 2023

Applicant :- Mo. Raj Opposite Party :- Union Of India Thru. Narcotic Control Bureau (N.C.B.) Lko. Counsel for Applicant :- Sudhir Kumar Singh,Rajendra Prasad Mishra Counsel for Opposite Party :- Akhilesh Kumar Awasthi

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Hon'ble Rajeev Singh,J.

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Heard learned counsel for the applicant as well as Mr. Akhilesh Kumar Awasthi, learned counsel for N.C.B. and perused the record.

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The instant bail application has been filed on behalf of the applicant with a prayer to enlarge him on bail in N.C.B. Case No. 28 of 2022 U/s 8/21/29 of N.D.P.S. Act, Police StationN.C.B., District- Lucknow.

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Learned counsel for the applicant submits that applicant has falsely been implicated in the present case by showing false recovery of the alleged contraband from his possession. He further submits that search and seizure memo were prepared by the officials on the basis of concocted facts.

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Further submission of learned counsel for the applicant is that as per the prosecution case, an input was received to officials of N.C.B. that one person i.e. applicant is coming from Meerut in between 11:00 hours to 12:00 hours on 16.11.2022 along with him 500 gm. Heroin and he will go to Barabanki along with any other person by motorcycle. It is further alleged that the officials of N.C.B. decided to do an effective joint operation with members of Special Task Force for recovering 500 gm. Heroin, in that regard, the aforesaid information was scribed on Form No. 01, which was placed before Shri Harish Kumar, Superintendent N.C.B., Lucknow. It is further alleged that two different teams were constituted and then started movement at 09:30 hours by carrying necessary equipment i.e. D.D. Kit, envelope, and other relevant forms etc. which were

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necessary for seizure. The aforesaid joint team passing across the 1090 crossing ( 'chauraha' ) at about 10:00 A.M. reached near Bhaisakund, Baikunth Dham at the bank of Gomti River. At about 11:00 A.M., one person was seen by the team, who was coming from Laxman Mela Park and he had one black bag on his back, as he was intercepted by the team then he informed that his name is Mohd. Raj s/o Mohd. Furkan r/o Village- Tikra Murtza, Police Station- Zaidpur, Barabanki. It is further alleged that the credentials of the aforesaid intercepted person was similar to the input received to the officials then the officials introduced themselves to the applicant. The applicant was also informed by the officials that his personal search be conducted before the Magistrate or Gazetted Officer and a notice U/s 50 of N.D.P.S. Act was given, which was written in English and the contents of the said notice were explained to him in Hindi language. Moreover, the applicant was asked about the bag on which HP was written, which was on his back, then firstly, he got shuddered and then he informed that the bag, which was on his back, contains Heroin, which he brought from Meerut on the direction of one person, namely, Junglee and that has to be delivered to Mohd. Safiq who is coming by his Pulsar Motorcycle bearing No. UP32EZ7115 to take the article. The applicant further informed to the team that Mohd. Safiq is present at some nearby place so he is searching him and sum of Rs. 1 lakh was provided by Safiq on 14.11.2022 for that contraband article. Thereafter, the team also started searching Mohd. Safiq who was identified near 1090 'chauraha' and when he was intercepted, he informed his credentials as Mohd. Safiq s/o Abdul Sakoor r/o Village Baraiya, Post- Barayan, Police Station- Zaidpur. As the said place was populated, both aforesaid persons were brought at N.C.B. office in between 12:00 hours to 12:25 hours.

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Further submission of learned counsel for the applicant is that on the choice of the applicant and Safiq, their personal search was conducted before Shri Harish Kumar, Superintendent, N.C.B., but no alleged contraband was recovered from their possession and the bag, which was found on the back of the applicant, was also searched, in which a transparent polythene and some whitish powder was found. Then the applicant as well as co-accused informed that this powder is Heroin. On the basis of smell of the said powder, the team prima facie found that it is Heroin, thereafter, it was

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examined by using D.D. Kit, the same was again verified and again second test was done by using D.D. Kit. After the said testing, it was concluded that the alleged contraband was Heroin, the search operation of alleged bag was recorded by camera, which was preserved in a memory card. It is further submitted that the accused persons were brought before learned trial court and the sample of alleged article was also taken with the permission of the court, thereafter, complaint was filed.

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Further submission of learned counsel for the applicant is that no sample of alleged article was taken before the court concerned in accordance with the provisions laid down by Hon'ble Apex Court. It is further submitted that as per the prosecution case, Heroin was recovered from the possession of the applicant and twice it was tested by using D.D. Kit, and after satisfaction, it was sent to laboratory for chemical examination. It is further submitted that in the chemical examination report, Alprazolam was found in place of Heroin.

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Further submission of learned counsel for the applicant is that the case of prosecution was that the Heroin was being transported by the applicant, but after the chemical analysis report, prosecution case is demolished. It is further submitted that the mandatory provision of Section 50 of the N.D.P.S. Act was not complied with as no independent witness was available while preparing the alleged recovery memo and videography of entire operation was not done by the N.C.B. team.

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In support of his submissions learned counsel for the applicant referred to and relied upon the decisions of Hon'ble Apex Court passed in the following cases:

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(i) Union of India vs. Mohan Lal and another reported in (2016) 3 SCC 379 ,

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(ii) Simarnjit Singh vs. State of Punjab reported in Crl. Appeal No. 1443 of 2023.

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After relying on the aforesaid judgements, learned counsel for the applicant further submits that the permission which is relied by prosecution is not satisfactory and objective.

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Lastly, learned counsel for the applicant submits that applicant is in jail since 16.11.2022, but till today not even a single witness has been examined and as per the prosecution case, all the witnesses are the government officers. It is, thus,

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submitted that applicant does not have any criminal antecedent, hence, he may be enlarged on bail.

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Learned A.G.A. as well as Mr. Akhilesh Kumar Awasthi, learned counsel for the N.C.B vehemently opposes the prayer of applicant. Learned counsel for the N.C.B. does not dispute the fact that as per the prosecution case, Heroin was recovered from the possession of the applicant, but in the chemical analysis report, Alprazolam was found in place of Heroin.

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Learned counsel for the N.C.B relied on the decision of Hon'ble Apex Court passed in the case of Ranjan Kumar Chadha vs. State of Himachal Pradesh reported in (2023) SCC Online SC 1262 , Paragraph No. 129 and 132 . He submits that drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of a country, but illicit money generated by drug trafficking is often used for illicit activities including encouragement of terrorism. He further submits that the contraband was recovered from the alleged bag as such provisions of Section 50 N.D.P.S. Act does not attracts herein, therefore, applicant is not entitled for bail.

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Considering the submissions of learned counsel for the applicant, learned counsel for the N.C.B and going through the contents of the bail application, search and seizure memo, complaint filed by the respondent authorities, report of laboratory as well as other relevant enclosures; it is evident that the bag in question was found on the back of the applicant and at the same time, his personal search was conducted, thereafter, the bag was also searched. It is admitted in the search and seizure memo that applicant was personally searched and in case he was personally searched including his bag which was carried by him on his back, then the provisions of Section 50 of N.D.P.S. Act must attract herein, and the same has to be complied with.

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It is also evident from the search and seizure memo that on the basis of smell of alleged contraband, the officials of N.C.B. has decided that it is Heroin, and thereafter, twice the same was examined by D.D. Kit. After getting assured, the applicant was taken into custody. But in the laboratory test, the contraband was not found Heroin as the same was found Alprazolam. As the provision of Section 37 of N.D.P.S. Act has been complied with by giving sufficient opportunity to the special counsel for the N.C.B. and at this stage, as the applicant does not have any

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criminal antecedent, he cannot be treated as convicted one. Thus, this Court is of the view that applicant is entitled to be released on bail.

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Hence, prima facie, case for bail is made out, at this stage.

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Accordingly, the application for bail is allowed .

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Let the applicant- Mo. Raj who is involved in aforementioned case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.

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(i) The applicant shall not commit or participate in any offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

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(ii) 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 officer or tamper with the evidence.

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(iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in Court. In case of default of this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law.

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(iv) The applicant shall remain present before the Trial Court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A IPC.

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(v) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C., may be issued and if applicant fails to appear before the Court on the date fixed in such proclamation, then, the Trial Court shall initiate proceedings against him, in accordance with law, under Section 174-A IPC.

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(vi) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of

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liberty of bail and proceed against him in accordance with law. 17. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

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Order Date :- 6.3.2024 Arpan

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

Mo. Raj v. Union of India Thru. Narcotic Control Bureau (N.C.B.) Lko.

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Mo. Raj v. Union of India Thru. Narcotic Control Bureau (N.C.B.) Lko.

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