Mohd. Irshad Vs State of U.P. Thru. Prin. Secy. Home Lko.

Neutral Citation No. - 2025:AHC-LKO:29883

Court No. - 13

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2654 of 2025 Applicant :- Mohd. Irshad Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Anil Kumar Pandey Counsel for Opposite Party :- G.A.

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Hon'ble Manish Mathur,J.

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Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State and perused the record. Rejoinder affidavit filed today is taken on record.

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This first bail application has been filed with regard to Case Crime No.110 of 2025, under Sections 8/21/29/60 of NDPS, Act, registered at Police Station Thakurganj, District Lucknow.

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As per contents of FIR, incident is said to have taken place on 01.03.2025 when a police team acting upon information received is said to have apprehended the applicant with illegal narcotics being 600 gm of smack.

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Learned counsel for applicant submits that applicant has been falsely implicated in allegations levelled against him which would be evident from the fact that there is no independent witness of the alleged recovery. It is submitted that although it has been stated that provisions of Section 50 NDPS Act has been complied with with the presence of a Gazetted Officer but the recovery memo does not indicate any signatures of such a Gazetted Officer. It is also submitted that recovery memo does not indicate any sample of the seized material having been taken and therefore the FSL report itself becomes doubtful. It is submitted that there is grave violation of Sections 42, 50 and 52A NDPS Act. Previous criminal history of two other cases have already been explained.

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Learned Additional Government Advocate appearing on behalf of State has opposed bail application with the submission that recovery memo itself clear indicates complicity of applicant with the allegations levelled against him. It is however admitted that previous criminal history of

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applicant has been explained.

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Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation , reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-

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"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."

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"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."

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Considering submissions advanced by learned counsel for parties and upon perusal of material available on record, it appears that there is no independent witness of the recovery. Recovery memo also does not appear to indicate signatures of the Gazetted Officer before whom allegedly recovery was made. The aspect of violation of Sections of NDPS Act would be subject matter of evidence during the course of trial. It may also be relevant that the recovery memo does not indicate any sampling having been done in the presence of Gazetted Officer. Previous criminal history of applicant has been duly explained.

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Looking to the nature of allegations levelled against the applicant and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with the witnesses has been alleged, in view of aforesaid discussion, conditions under Section 37 of NDPS Act stand

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satisfied. Prima facie, this Court finds, the applicant is entitled to be released on bail in this case.

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Accordingly bail application is allowed .

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Let applicant, Mohd. Irshad involved in the aforesaid case crime be released on bail on his/her furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

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(i) The applicant shall file an undertaking to the effect that she/he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

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(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his/her counsel. In case of his/her absence, without sufficient cause, the trial court may proceed against him/her under Section 229-A of the Indian Penal Code.

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(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his/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, then, the trial court shall initiate proceedings against him/her, in accordance with law, under Section 174-A of the Indian Penal Code.

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(iv) 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. If in the opinion of the trial court, absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him/her in accordance with law.

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Order Date : - 20.5.2025 Subodh/-

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Digitally signed by :- SUBODH KUMAR SINGH High Court of Judicature at Allahabad, Lucknow Bench

Mohd. Irshad v. State of U.P. Thru. Prin. Secy. Home Lko.

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