Allowed

Kamla Maghar v. Union of India Thru. Intelligence Officer Officer Pankaj Dubey,N.C.B.,Lko.

Allahabad HC29 Aug 2024BAIL/4773/2024

Case brief

AI extract

What is this about?

Second bail application in an NDPS case involving recovery of 8.250 kg charas from a Nepali citizen applicant. Court noted absence of independent eye witness, unrefuted plea of non-compliance with Section 52A sampling before Magistrate, no criminal history, and trial not concluded despite long incarceration, and allowed bail with conditions.

What did the court decide?

Applicant released on bail on furnishing personal bond and two heavy sureties, with five conditions including non-tampering, presence at trial, and undertaking not to leave the country without permiss

Kamla Maghar vs Union of India Thru. Intelligence Officer… — Narcotics (NDPS) | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:76754

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Court No. - 15

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4773 of 2024

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Applicant :- Kamla Maghar Opposite Party :- Union Of India Thru. Intelligence Officer Officer Pankaj Dubey,N.C.B.,Lko. Counsel for Applicant :- Manoj Kumar Singh Counsel for Opposite Party :- Akhilesh Kumar Awasthi

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Hon'ble Shree Prakash Singh,J.

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Heard learned counsel for the applicant as well as Sri Akhilesh Kumar Awasthi, learned A.G.A. for the State and perused the record.

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The instant second bail application has been filed on behalf of the applicant with a prayer to release the applicant on bail during the trial in N.C.B. No. 33 of 2019, under Section 8/20, 23, 29 of Narcotic Drugs and Psychotropic Substances Act, P.S. - N.C.B., District - Lucknow, after the first having been rejected as not pressed vide order dated 11.10.2022 passed by this court in Criminal Misc. Bail Application No. 3241 of 2020.

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Contention of the learned counsel for the applicant is that the applicant is innocent and he has been falsely planted by the police. He also submits that as per the prosecution story 8.250 kg. of Charas, i.e., Contraband substance, is said to have been recovered, but there is no independent eye witness of recovery. He further submits that he has taken specific plea in paragraph 12 of the affidavit filed in support of the bail application that mandate of provision of Section 52A of the N.D.P.S. Act has not been complied in letter and spirit and the same has not been specifically denied in the counter affidavit filed by the opp. party. He submits that samples were not taken before the Magistrate, which is clearcut violation of mandate of the provision of Section 52A, read with the Narcotic Drugs and Psychotropic. Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 . He further submits that there is no previous criminal history of the applicant and the applicant is in jail since 12.08.2019 and the trial has not been concluded as yet and there is no possibility that the trial will be concluded in near future. He also submits that the applicant though is a Nepali citizen, but he is ready to furnish local sureties and he will not

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leave the country without prior permission granted by the trial court. He also submits that the applicant undertakes that he will remain present on each and every date before the trial court. Thus, he prays that the applicant may be enlarged on bail.

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Per contra , learned counsel for the N.C.B. opposed the prayer of bail and submits that a huge amount of contraband (Charas) has been recovered from possession of the applicant and the sample was taken and was sent to the Forensic Science Laboratory for examination and the report has been received and it was found that the substance is ‘Charas’. He also submtis that the applicant is a Nepali citizen and there is apprehension that if he is granted the liberty of bail, he will flee away and will not be available for trial in the future, thus, he submits that the bail application of the applicant be rejected.

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Considering the submissions of the learned counsel for the parties and after perusal of record, it is evident that there is no independent public eye witness of recovery. This court has also taken note of the fact that specific plea has been taken by learned counsel for the applicant in the bail application and that has not been denied. Fact that samples were not taken before the Magistrate; the provision of the Narcotics Drugs & Psychotropic Substances Act, 1985 is very stringent and, therefore, it is expected from the authority concerned to follow the mandate of the provision in letter and spirit, which is lacking in the present matter. Further, the applicant has no previous criminal history and he is in jail since 12.08.2019 and the trial has still not been concluded nor there is any possibility of it being concluded in near future; the applicant has undertaken that he will not leave the country without prior permission/order of the trial court, thus, this court finds it a fit case for bail. The bail application is accordingly allowed .

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Let the applicant Kamla Maghar W/o late Hansraj involved in the aforementioned crime be released on bail, on her furnishing a personal bond and two heavy sureties, each in the like amount, to the satisfaction of the court concerned, with the following conditions:-

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(1) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, or otherwise during the investigation or trial;

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(2) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. She shall remain present before the trial court on each date fixed, either personally or through her counsel. In case of her absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code;

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(3) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C.; and

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(4) In case, the applicant misuses the liberty of bail during trial and in order to secure her presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, the trial court shall initiate proceedings against her, in accordance with law under Section 174-A of the Indian Penal Code.

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(5) If the applicant breaches the conditions, stated above, or becomes absent on a date before the trial court, the opp. party/N.C.B. shall have right to move application for cancellation of bail.

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The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison.

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It is clarified that the observations made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the merits of the case.

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( Shree Prakash Singh, J. )

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Order Date :- 20.11.2024 A.Nigam

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

Kamla Maghar v. Union of India Thru. Intelligence Officer Officer Pankaj Dubey,N.C.B.,Lko.

Case brief

What is this about?

What did the court decide?

Kamla Maghar v. Union of India Thru. Intelligence Officer Officer Pankaj Dubey,N.C.B.,Lko.

Case brief

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What did the court decide?

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