Allowed

Shivam Pathak v. State of U.P. Thru. Prin. Secy. Home Lko.

Allahabad HC1 Feb 2024/987/2024

Case brief

AI extract

What is this about?

This bail application was allowed due to significant procedural lapses by the prosecution, specifically non-compliance with Section 50 NDPS Act during the search, and doubts regarding the applicant's prima facie guilt based on prior case history.

What did the court decide?

The applicant was released on bail upon furnishing a personal bond with two sureties on specified conditions.

Shivam Pathak Vs State of U.P. Thru. Prin. Secy. Home Lko. — Narcotics (NDPS) | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:9284

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Court No. - 12

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 987 of 2024

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Applicant :- Shivam Pathak Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Anil Kumar Pandey,Awadhesh Kumar Pandey Counsel for Opposite Party :- G.A.

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Hon'ble Pankaj Bhatia,J.

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1. Heard learned counsel for the applicant, learned AGA and perused the record.

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2. The applicant seeks enlargement on bail in FIR No.503 of 2023, under Section 8/21(c)/29/60(3) of NDPS Act, P.S. Zaidpur, District Barabanki.

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3. In terms of the FIR it was alleged that on the basis of information received, a search was carried out on three persons, one of them being the applicant, and from the search carried out on the applicant, in his pocket, 310 gm of morphine was allegedly recovered.

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4. In the light of the said, the submission of counsel for the applicant is that earlier also the applicant was linked with an offence being Case Crime No.109 of 2023 in which this Court had granted bail vide order dated 05.05.2023. While granting the bail, the Court had also observed that in the recovery memo of the said case and the arrest memo, the case crime number was mentioned whereas the FIR was lodged subsequently. The Court also found that there was no compliance of Section 50 and mandate of Section 42 of NDPS Act.

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5. It is also argued that as soon as the applicant was enlarged on bail, he was implicated in an offence under U.P. Gangsters Act being Case Crime No.262 of 2023 and when the applicant was enlarged on bail in the said case, the present case has been

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hoisted upon the applicant.

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6. It is further argued that admittedly as per the FIR, the search was carried out in person and clearly there is no compliance of the mandate of Section 50 NDPS Act; even no independent witnesses are shown, thus, it is argued that although, the quantity recovered from the applicant is slightly above the commercial quantity, however, there is a clear non-compliance of Section 50 and 42 NDPS Act.

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7. Learned AGA, on the other hand, opposes the bail application by arguing that as the recovery is more than the commercial quantity, the test of Section 37 NDPS Act has to be satisfied. He also argues that the applicant has criminal antecedents of an offence under the NDPS Act, thus, on that ground also, the bail application should be rejected.

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8. Considering the submissions made at the Bar and considering the fact that the recovery is allegedly more than the commercial quantity, the test of Section 37 NDPS Act has to be satisfied.

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9. The scope of restrictions placed under Section 37 NDPS Act was duly explained in the case of Mohd Muslim @ Hussain v. State (NCT of Delhi); 2023 LiveLaw (SC) 260 wherein the following was observed:

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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 a 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

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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 Malik). 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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10. In the present case, there is a clear non-compliance of Section 50 NDPS Act, even independent witnesses are not present to the search, thus, the recovery which took place on the person of the applicant without following the mandate of Section 50 NDPS Act is clearly in the teeth of the provisions of the NDPS Act. As such, this Court can reasonably form a view that the prosecution may not be able to establish the offence against the applicant.

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11. As regards the second of the twin tests prescribed under Section 37 NDPS Act, it is on record that while enlarging the applicant on bail in Case Crime No.109 of 2023, this Court in its order dated 05.05.2023 had specifically observed that there

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were grave errors in mentioning the FIR number even prior to the registration of the FIR. It also bears from record that soon after the applicant was enlarged on bail, a case under the U.P. Gangsters Act was hoisted upon him. As such, the second of the twin tests also stands satisfied.

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12. In view of the above, the applicant who is in custody since 23.12.2023 is entitled to be enlarged on bail. In view thereof, the application is allowed.

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13. Let the applicant Shivam Pathak be released on bail in aforesaid FIR number on his furnishing a personal bond with two sureties of the like amount each to the satisfaction of 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 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 :- 1.2.2024 nishant

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

Shivam Pathak v. State of U.P. Thru. Prin. Secy. Home Lko.

Case brief

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Shivam Pathak v. State of U.P. Thru. Prin. Secy. Home Lko.

Case brief

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