Allowed

Kamar Ali v. State of U.P. Thru. Prin. Secy. Home Lko

Allahabad HC25 Jul 2024BAIL/7718/2024

Case brief

AI extract

What is this about?

Bail sought in an NDPS heroin recovery case where sampling was not recorded and FSL sample was under 5 gms contrary to notifications. Court found prima facie infirmities, held Section 37 conditions satisfied given no criminal history, and allowed bail.

What did the court decide?

Applicant released on bail on furnishing personal bond with two sureties, subject to standard conditions.

Kamar Ali 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:52856

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Court No. - 12

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7718 of 2024

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Applicant :- Kamar Ali Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko Counsel for Applicant :- Krishna Kumar Tiwari Counsel for Opposite Party :- G.A.

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Hon'ble Pankaj Bhatia,J.

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1. Counter affidavit filed today in Court is taken on record.

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

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3. The applicant seeks enlargement on bail in FIR No.100 of 2024, under Section 8/21C of NDPS Act, P.S. Jaidpur, District Barabanki.

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4. In terms of the FIR, allegedly, on the basis of a search carried out from the pocket of the applicant 305 gms of powder which was suspected to be heroin was recovered. The FIR also records that the search was carried out in the presence of a Gazetted Officer, however, there were no independent witnesses to the search. The FIR in question does not record the manner in which sampling was done which, according to the applicant, is contrary to the mandate of Section 52A of NDPS Act as well as the two notifications. He further argues that the applicant has no criminal history and may be enlarged on bail as he is in custody since 19.03.2024.

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5. Learned AGA has opposed the bail application by arguing that in the recovery memo, signatures of the Gazetted Officer ware present. He places on record the FSL report wherein it was recorded that sample was received on 30.03.2024 containing powder in the quantity of 4.861 gms which was found to be heroin. In the light thereof and in terms of the mandate of Section 37 of NDPS Act, it is argued that the applicant may not be enlarged on bail. He, however, does not deny that the applicant has no criminal history.

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6. Considering the arguments raised at the Bar, prima-facie , the recovery was affected from the pocket and the signatures of the Gazetted Officer are also on record, however, in the present case, the manner of drawing sample is not indicated which is contrary to the law as explained in the case of Yusuf @ Asif v. State; AIR 2023 SC 5041 , the effect of which is that the entire trial can get vitiated; even the sample size as indicated in the

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FSL report is less than 5 gms which is contrary to the two notifications. As such, considering the law as explained in the case of Mohd Muslim @ Hussain v. State (NCT of Delhi); 2023 LiveLaw (SC) 260 and in the case of Yusuf @ Asif (supra) , and prima-facie , finding that the manner of sampling is contrary to the mandate of Section 52A of NDPS Act, a primafacie view can be formed that the prosecution may not be able to establish the offence based upon the said infirmities, as such, requirements of Section 37 of NDPS Act are prima-facie satisfied, and further considering the fact that the applicant has no criminal history, in view of the law as explained in the case of Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr.; (2005) 5 SCC 294 , the applicant is entitled to be enlarged on bail. In view thereof, the application is allowed.

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7. Let the applicant Kamar Ali 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 :- 2.8.2024 nishant

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

Kamar Ali v. State of U.P. Thru. Prin. Secy. Home Lko

Case brief

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Kamar Ali v. State of U.P. Thru. Prin. Secy. Home Lko

Case brief

What is this about?

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