Faiyaz @ Fajji Vs State of U.P. Thru. Prin. Secy. Home Lko.

In the prosecution case, it is alleged that on the basis of information received by the Mukhbir during patrolling, the applicant, who was sitting on the driver seat, was apprehended. On being searched, nothing objectionable was recovered from the applicant. However, from the bag carried by the applicant on his back, about 1.520 kgs. green colour polythene packet containing brown colour powder alleged to have been recovered.

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Learned counsel for the applicant submits that mandatory provision of Section 42 of NDPS Act has not been complied with as alleged information has not been taken down in writing and the copy of the same has not been sent to the higher Officer within the time prescribed in the Act. He submits that compliance could have been made even after recovery in case of shortage of time as observed by the Hon'ble Apex Court in the case of Karnail Singh vs. State of U.P., (2009) 3 SCC (Cri) 887.

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Further submitted that there is complete non-compliance of provisions of Section 52 NDPS Act. There is no independent eye witnesses of the alleged recovery neither any effort has been made to arrange the said witness.

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It is submitted that the search is said to have been conducted before the Gazetted Officer namely Beenu Singh. However, presence of said Officer

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becomes doubtful as she has not been made prosecution witness by the I.O. neither her signature has been made on the recovery memo nor on the arrest memo.

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It is further submitted that there is no possibility of the applicant of fleeing away after being released from jail or tampering with the witnesses. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail.

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Learned A.G.A. opposed the prayer for bail. However, he submits that there is no requirement of Gazetted Officer to sign recovery memo during trial. In case, presence of Officer is needed the Court concerned can summon the Officer in the interest of justice. After search and seizure samples were sent for forensic examination.

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Perused the record.

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Upon examining the materials available on record, it is evident that the search and seizure proceedings suffer from non-compliance with the mandatory requirements under Section 42 of the NDPS Act. Furthermore, although the recovery is stated to have been made in the presence of a Gazetted Officer, namely Ms. Beenu Singh, she has neither been cited as a prosecution witness nor have her signatures been endorsed on the recovery memo or the arrest memo. These deficiencies raise serious doubt regarding the genuineness and credibility of the alleged recovery.

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Considering the aforesaid facts and circumstances, the legal position laid down by the Hon’ble Supreme Court in Karnail Singh (supra) , as well as the fact that the applicant has no prior criminal antecedents under the NDPS Act, the twin conditions stipulated under Section 37(1)(b) of the NDPS Act appear to be satisfied and there exist reasonable grounds for believing that the applicant may not be guilty of the alleged offence and that he is unlikely to commit any offence while on bail.

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Accordingly, the bail application stands allowed .

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Let the applicant - Faiyaz @ Fajji involved in aforesaid case crime be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of Magistrate/Court concerned, subject to following conditions:-

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(i) the applicant shall not tamper with the prosecution evidence;

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(ii) the applicant shall not pressurize the prosecution witnesses;

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(iii) the applicant shall appear on each and every date fixed by the trial Court.

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Any other condition(s) which the trial court/concerned court may deem fit and proper, in the circumstances of the case, may also be imposed.

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It is clarified that the observations made in this order are confined to the present bail application and shall have no bearing on the merits of the trial.

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November 26, 2025 Vinay/-

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(Karunesh Singh Pawar,J.)

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

Faiyaz @ Fajji v. State of U.P. Thru. Prin. Secy. Home Lko.

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Faiyaz @ Fajji v. State of U.P. Thru. Prin. Secy. Home Lko.

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