Allowed

Javed v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko

Allahabad HC5 Dec 2024BAIL/9557/2024

Case brief

AI extract

What is this about?

Bail application for an applicant arrested after alleged recovery of 482 grams brown sugar from a double decker bus where he worked as conductor. Counsel argued non-compliance with Section 52-A NDPS Act and Rules 2022, unexplained 35-day delay in sending FSL samples, and no independent witness to recovery. Court found it a fit case for bail without expressing merits and released him on conditions.

What did the court decide?

Applicant Javed released on bail on furnishing personal bond and two sureties each in like amount, with conditions against tampering with evidence and requiring presence at trial stages.

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

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Neutral Citation No. - 2024:AHC-LKO:81392

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Court No. - 15

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9557 of 2024

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Applicant :- Javed Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko Counsel for Applicant :- Amit Kumar Awasthi,Shubham Shukla Counsel for Opposite Party :- G.A.

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Hon'ble Shree Prakash Singh,J.

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Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

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The instant bail application has been filed on behalf of the applicant with the prayer to release him on bail during the trial in Case Crime No. 150 of 2024, under sections 8/21 of the N.D.P.S. Act,Police Station-Shardanagar, District -Kheri.

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It has been contended by the learned counsel for the applicant that as per the prosecution story, the contraband substance i.e. 482 grams of 'Brown Sugar' is said to be recovered from the double decker bus, wherein the present applicant was allegedly working as Conductor, but, there is no public eye witness of the same. He submits that the applicant has taken specific plea in paragraph nos. 22 & 23 of the of the bail application that there is a clear cut violation of provisions of Section 52-A of the Narcotic Drugs and Psychotropic Substances Act,1985 readwith the Rules, 2022(hereinafter referred to as Act, 1985 readwith Rules, 2022), but, the State while filing the Counter Affidavit, has not specifically denied as the fact remains that the samples were not taken from all the packets, which is said to be recovered. He also submits that the samples were not sent immediately after it was prepared as the samples were taken on 22-07-2024 and admittedly, those were sent on 22-08-2024. It is nowhere explained by the State that for the period

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of about 35 days, where the samples were kept and thus, the whole proceedings of recovery with respect to the contraband substance, is in contravention to the Act,1985 readwith Rules, 2022 and thus, the whole proceedings vitiate in the eyes of law and would not lead to the punishment.

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Adding his arguments, he submits that infact, even if the recovery is shown of the contraband substance, that was kept in a double decker bus and the concept of conscious possession would not apply in this matter. He also submits that the applicant has a case criminal history, which has been explained in paragraph no. 24 of the Rejoinder Affidavit and except apart, there is no criminal antecedent of the applicant. He added that the applicant is a law abiding citizen and he is languishing in jail since 22-07-2024 and the chargesheet has been filed and as such, there is no possibility that the applicant will not cooperate in the investigation proceedings. Further submitted that the applicant undertakes that in case, he is granted bail, he will not misuse the liberty of the same and would cooperate in the trial proceedings.

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Per contra, learned AGA appearing for the State has opposed the contentions aforesaid and submits that a huge amount of contraband substance i.e. Brown Sugar' is recovered from the double decker bus and that was under the conscious possession of the applicant including the other co-accused persons. He submits that there is a case criminal history of the applicant and as such, he is not entitled for any relief.

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Having heard learned counsels for the parties and after perusal of material placed on record, it transpires that though the contraband substance i.e. Brown Sugar, is said to be recovered from the

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double decker bus, but, there is no proof that there was any independent eye witness of the said recovery.

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This court has also noticed the fact that specific plea has been taken by the applicant in paragraph nos. 22 & 23 of the bail application that there is clear cut non compliance of the provisions of Section 52-A of the Act, 1985 readwith the Rules, 2022, but, the same has not been specifically denied by the State while filing its' Counter Affidavit; further the samples, which were taken on 22-07-2024, were sent to the FSL for its' examination on 22-08-2024 and no explanation of delay thereof, has been given that where the aforesaid samples were kept for a period of 35 days; the applicant has explained a case criminal history and he is languishing in jail since 22-072024 coupled with the fact that the applicant has undertaken that if he is granted bail, he will not misuse the liberty of the same and would cooperate in the trial proceedings.

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Considering the submissions of learned counsel of both sides, nature of accusation and severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment and considering larger mandate of the Article 21 of the Constitution of India and, without expressing any view on the merits of the case, I find it to be a fit case of bail.

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Let the applicant- Javed involved in the aforementioned 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, with the following conditions:-

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(1) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing

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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. He 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 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 his 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 him, in accordance with law under Section 174-A of the Indian Penal Code.

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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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Order Date :- 5.12.2024

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AKS

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

Javed v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko

Case brief

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Javed v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko

Case brief

What is this about?

What did the court decide?

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