Allowed

Amit Tiwari v. State of U.P. Thru. Addl. Chief Secy. Deptt. of Home Lko.

Allahabad HC26 Apr 2024BAIL/4596/2024

Case brief

AI extract

What is this about?

In this criminal miscellaneous bail application, the Allahabad High Court (Lucknow Bench) allowed the applicant's request for bail in a narcotics case. The court identified procedural infirmities regarding the search and seizure process under Section 52-A of the NDPS Act and the applicant's lack of criminal history as grounds for granting bail despite the recovery exceeding commercial quantities.

What did the court decide?

The applicant was released on bail after furnishing a personal bond and two reliable sureties of equal amount.

Amit Tiwari vs State of U.P. Thru. Addl. Chief… — Criminal Trial and Appeal | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:64359

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Court No. - 12

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4596 of 2024

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Applicant :- Amit Tiwari Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home Lko. Counsel for Applicant :- Gulam Mustafa 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, learned AGA and perused the record.

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The accused-applicant seeks bail in Case Crime No.359 of 2023 under sections 379, 511, 427, 420, 467, 468, 471, 401 IPC and Section 18/20 NDPS Act, P.S. Dahi, District Unnao.

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In terms of the FIR, on the basis of an information, a search was carried out and from the Santro Car, in the two plastic bags, allegedly one kilogram three hundred fifty grams of Charas was recovered. The equipment with regard to preparation of theft in the ATM etc. were also recovered. It was also alleged that the number plate of the car was found forged.

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The submission of the counsel for the applicant is that the recovery of Charas from the car was not in the presence of any independent witnesses, the sample was not drawn in terms of the mandate of notification and the mandate of Section 52-A was also not followed. It is further argued that as per the FIR, the sample of fifty grams, from the recovery affected from the applicant, was kept in a newspaper and thereafter sealed in a white cloth, whereas according to the applicant, as per the FSL report shown across the Bar, the sample was received only wrapped in a newspaper without there being mention that the sample was received sealed in a cloth as recorded in the FIR. It is lastly argued that the applicant has no criminal history of an offence under the NDPS Act and is in custody since 28.12.20232, as such, may be enlarged on bail.

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Learned AGA opposes the bail application by arguing that as the recovery is more than the commercial quantity, the test of Section 37 of the NDPS Act has to be satisfied.

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Section 37 of the NDPS Act was interpreted by the Supreme Court in the case of Mohd Muslim @ Hussain v. State (NCT of Delhi); 2023 LiveLaw (SC) 260 and the effect of not following the mandate of section 52-A of the NDPS Act was considered in

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the case of Yusuf @ Asif v. State; Criminal Appeal No.3191 of 2023 decided on 13.10.2023.

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In the present case, there are no independent witnesses to the search, the sample sent has not been drawn in the presence of the magistrate and as per Section 52-A of the NDPS Act, the FSL found the sample wrapped in the newspaper whereas the FIR records that the same was sealed in a white cloth, thus, based upon these infirmities, a prima-facie view can be formed that the prosecution may not be able to establish the offence against the applicant. The applicant has no criminal history of an offence under the NDPS Act, thus, the second test of Section 37 is also satisfied keeping in view the law as explained in the case of Ranjitsingh Brahmajeetsing Sharma vs. State of Maharashtra, (2005) 5 SCC 294, as such, the applicant who is in custody since 28.12.2023 is entitled for the bail. Thus the bail application is allowed.

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Let the applicant Amit Tiwari be released on bail in aforesaid first information report number subject to his furnishing a personal bond 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 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 :- 18.9.2024 VNP/-

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Digitally signed by :- VISHVANATH PRASAD SHUKLA High Court of Judicature at Allahabad, Lucknow Bench

Amit Tiwari v. State of U.P. Thru. Addl. Chief Secy. Deptt. of Home Lko.

Case brief

What is this about?

What did the court decide?

Amit Tiwari v. State of U.P. Thru. Addl. Chief Secy. Deptt. of Home Lko.

Case brief

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What did the court decide?

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