Nandkishore vs State of U.P.

Neutral Citation No. - 2025:AHC:86329

Court No. - 88

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3308 of 2025

Applicant :- Nandkishore Opposite Party :- State of U.P. Counsel for Applicant :- Dhiraj Kumar Sharma,Namit Kumar Sharma Counsel for Opposite Party :- G.A.

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Hon'ble Ram Manohar Narayan Mishra,J.

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Supplementary affidavit filed today is taken on record.

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Heard learned counsel for the applicant, learned AGA for the State and perused the material placed on record.

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Applicant seeks bail in Case Crime No. 240 of 2024, under Section 8/20 of The Narcotic Drugs And Psychotropic Substances Act, 1985, Police Station- GRP Cantt., (GRP Section Agra) District Agra, during the pendency of trial.

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As per prosecution story, police team headed by SI Ajeet Kumar of Police Station GRP Agra Cantt., intercepted accused applicant on suspicion and from personal search, 02 packets were received from the applicant in parcel on reference in person. Total 29.750 kg. illegal Ganja was recovered which is more than 20 kg. and commercial quantity of Ganja. It is stated in recovery memo that accused fled away from the spot after misleading the police personnel when he was asked to check the packets and then packets were checked and recovery memo was prepared. Learned counsel for the applicant submitted that the sampling of recovered contraband was not done in accordance with provision of N.D.P.S. Act and in violation of clause 2.4 of Standing Order No. 01 of 1989. The sampling was not done before the Magistrate as provided under section 52(A) of the Act. Learned counsel submitted that general procedure of sampling is provided in Standing Order No. 01 of 1989 but same has not been complied by the opposite party. He has relied upon clause 2.1 to 2.8 of the aforesaid standing order quoted herein below :-

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"2.1 All drugs shall be classified, carefully, weighed and sampled on the spot of seizure.

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2.2 All the packages/containers shall be numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the persons from whose possession the drug is recovered and a mention to this effect should invariably be made in the panchnama drawn on the spot.

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2.3 The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the cases of opium, ganja and charas (hashish) were a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn.

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2.4 In the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container.

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2.5 However, when the packages/containers seized together are of identical size and weight, bearing identical markings and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects the packages/container may be carefully bunched in lots of 10 package/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of, 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn.

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2.6 Where after making such lots, in the case of hashish and ganja, less than 20 packages/containers remain, and in the case of other drugs, less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn.

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2.7 If such remainder is 5 or more in the case of other drugs and substances and 20 or more in the case of ganja and hashish, one more sample (in duplicate) may be drawn for such remainder package/container.

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2.8 While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative sample the in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot."

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Learned counsel has submitted that the above clauses of the standing order clearly show that the police was required to draw a sample from each packet allegedly recovered with the help of field testing kit. The mixing of the material from all the packets and then drawing of representative sample is not provided in the Standing Order. Learned counsel for the applicant has also relied upon the judgment of Hon'ble Supreme Court in Netram vs. State of Rajasthan, 2013 0 Supreme (Raj.) 1948 . He lastly submitted

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that the applicant has been falsely implicated in this case. He is absolutely innocent. He is in jail since 11.11.2024. In case, the applicant is released on bail, he will not misuse the liberty of bail.

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Learned A.G.A. has vehemently opposed the bail application on the ground that the recovery of the contraband article is of commercial quantity.

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Considering the facts of the case and keeping in mind, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/ State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail.

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Let the applicant- Nandkishore , who is involved in the aforementioned case 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 subject to following conditions. Further, before issuing the release order, the sureties be verified.

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(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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 counsel. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A IPC.

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(iii) 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., may be issued and if applicant fails to appear before the Court on the date fixed in such proclamation, then, the Trial Court shall initiate proceedings against him, in accordance with law, under Section 174-A IPC.

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(iv) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the Trial Court absence of the applicant is

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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 in accordance with law.

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In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

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It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.

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Order Date :- 21.5.2025 Dhirendra/

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Digitally signed by :- DHIRENDRA KUMAR High Court of Judicature at Allahabad

Nandkishore v. State of U.P.

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