Pooran vs Union of India Thru. Its Zonal Director Narcotics Control Bureau Lucknow

Court No. - 29

Case :- CRIMINAL APPEAL No. - 2225 of 2024

Appellant :- Pooran Respondent :- Union Of India Thru. Its Zonal Director Narcotics Control Bureau Lucknow Counsel for Appellant :- Rajiva Dubey Counsel for Respondent :- Akhilesh Kumar Awasthi

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Hon'ble Shree Prakash Singh,J.

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C.M. Application No. 1 of 2024

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Counter affidavit filed today by learned counsel appearing for N.C.B. is taken on record.

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Heard Shri Rajiva Dubey, learned counsel for the applicant-appellant as well as Shri Akhilesh Kumar Awasthi, learned counsel for the respondent- NCB, and perused the entire record.

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This application under section 389 CrPC seeks bail in pending appeal which has been preferred by applicantappellant- Pooran against the judgment and order dated 30.09.2023/29.6.2024 passed by the Additional District and Sessions Judge, Court No. 4, Lakhimpur Kheri in Special Case No.35 of 2016, arising out of NCB Case No.06/2016, under section 8/20/29 NDPS Act, NCB Zonal Unit, Lucknow.

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Vide the said judgment and order, the applicant-appellant has been convicted and sentenced as follows:-

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U/s 8/20 Narcotic Drugs and Psychotropic Substances Act, 1985, 12 years rigorous imprisonment with fine of Rs.1,00,000/- and in case of non-deposition of the fine amount, 01 year's additional imprisonment.

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Learned counsel for the applicant-appellant submits that it is case of false implication. The trial court has committed manifest illegality in appreciating evidence available on record and has convicted the applicant-appellant on the basis of insufficient and unreliable evidence. It is also submitted that the applicant-appellant belongs to a very poor family and despite the fact that during the course of trial he was granted bail. It is also submitted that the trial court has not given required weightage to the contradictions of inherent nature which were available in the testimony of prosecution witnesses.

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It is vehemently submitted that out of four persons, who have been convicted by the trial court, two co-convicts, namely, Sakir and Bunty, whose role was also of hatching conspiracy and receiving the contraband, which has been shown to have been recovered from the possession of the applicant-appellant, have been enlarged on bail by a coordinate bench of this court vide orders dated 02.02.2024 passed in criminal appeal nos. 2867 of 2023 and 3139 of 2023 respectively. It is further submitted that the applicant-appellant is in jail since 28.6.2024. It is also submitted that the applicant-appellant has explained his criminal history in para no. 35 of the affidavit and there is no apprehension that the applicant-appellant, after being released on bail, may flee from the process of law or may otherwise misuse the liberty. Learned counsel for the applicant-appellant has relied on the law laid down by the Hon'ble Supreme Court in the following:-

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i. (2018) 3 SCC 22 (Dataram Singh Vs. State of Uttar Pradesh and another;

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ii. Criminal Appeal No.693 of 2021 (arising out of SLP (Crl.)3610/2020) (Paras Ram Vishnoi Vs. The Director, Central Bureau of Investigation;

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iii. 2023 LiveLaw (SC) 260 (Mohd Muslim @ Hussain Vs. State (NCT of Delhi);

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iv. AIR 2001 Supreme Court 1528 (Smt. Akhtari Bi Vs. State of M.P.; and

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v. (2001) 10 SCC 463 (Takht Singh and others Vs. State of M.P.)

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Shri Akhilesh Kumar Awasthi, learned counsel for the respondent- NCB, submits that the law laid down by the Hon'ble Supreme Court in the case of Mohd Muslim @ Hussain Vs. State (NCT of Delhi (supra) was with regard to the proceedings pending at the level of the trial court and same may not be applicable at the stage of appeal. It is also submitted that the role of the instant applicantappellant is not at par with co-convicts- Sakir and Bunty who have been granted the facility of bail by the coordinate bench of this court during the pendency of their appeals. It is also submitted that having regard to the evidence available against the applicant-appellant and the twin conditions, as enshrined under section 37 (1)(b) of NDPS Act, the applicant-appellant is not entitled to be released on bail and that the law laid down by the Hon'ble

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Supreme Court in the case of Dataram Singh Vs. State of Uttar Pradesh and another (supra) would also not be of any help to the applicant-appellant. The learned counsel for the respondent- NCB places reliance on the orders passed by the Hon'ble Supreme Court in the following cases:-

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i. Raveen Kumar Vs. State of Himachal Pradesh, Criminal Appeal Nos.2187-88 of 2011;

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ii. Baldev Singh Vs. State of Haryana, Criminal Appeal No.167/2006;

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iii. Union of India through Narcotics Control Bureau, Lucknow Vs. Md. Nawaz Khan, Criminal Appeal No.1043 of 2021, arising out of SLP (Crl) No.1771 of 2021);

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iv. State of Kerala Etc. Vs. Rajesh Etc, Criminal Appeal No.154/157 of 2020, arising out of SLP (Crl) No.(s) 7309-7312 of 2019;

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v. Union of India Vs. Ram Samujh, 1999 (39) ACC 643; and

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vi. Union of India Vs. Ashok Kumar Jaiswal, 2010 (3) SCC (Crl.);

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Having heard learned counsel for the parties and having perused the record, there appears no dispute in factual scenario as the applicant-appellant before this court is in jail in this case since 28.6.2024. There appears no doubt that the co-convicts, namely, Sakir and Bunty have been released on bail by a coordinate bench of this court after being convicted and sentenced by the trial court in the like manner as of the applicant-appellant and they have also been sentenced with 12 years rigorous imprisonment with fine of Rs.1,00,000/-. The case of the prosecution is also plain that it is in furtherance of a conspiracy the two co-convicts, namely, Sakir and Bunty had arrived in a Maruti Ertiga Car and the co-accused Gautam Das along with driver of the truck, namely, Palvinder had arrived at the same place along with contraband and believing upon the story, as stated by the NCB, the trial court has convicted all the accused persons, finding them part & parcel of the same conspiracy. Thus, in the considered opinion of this court no differentiation may be made between the co-convicts, who have already been enlarged on bail, and had come

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to buy the contraband, while the co-accused Gautam Das along with driver is shown to have arrived at the scene of occurrence for the purpose of selling the contraband and they all were part & parcel of the one and the same conspiracy and had been apprehended together. So far as the submission advanced by the learned counsel for the respondent- NCB that the law laid down by the Hon'ble Supreme Court in the case of Mohd Muslim @ Hussain Vs. State (NCT of Delhi (supra) and in the case of Smt. Akhtari Bi Vs. State of M.P. (supra) would not be applicable at the appellate stage, I do not find any substance in the submission made on behalf of the respondent -NCB. In the case of Mohd Muslim @ Hussain Vs. State (NCT of Delhi (supra) the concern of the Hon'ble Supreme Court was with regard to the detention of the accused person for a long time viz-a-viz the nonconclusion of the trial. The similar situation may be available before the trial court as the instant appeal is nothing but the continuation of the trial and if an accused person is continuously in detention, the law laid down by the Hon'ble Supreme Court in the case of Mohd Muslim @ Hussain Vs. State (NCT of Delhi (supra), having regard to the peculiar facts and circumstance of the case, shall also be available for the those accused persons, who are continuously in detention without any fault on their part. Thus, having regard to all the facts and circumstances of the case, specifically the circumstance that identically placed co-convicts, namely, Sakir and Bunty have already been enlarged on bail by a coordinate bench of this court and there is nothing on record which may suggest that the bail orders passed in their favour have either been challenged before any higher forum or have been cancelled by the same bench/court, a case for bail is emerging in favour of the applicant-appellant, pending disposal of the appeal.

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In result, the instant bail application is allowed .

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Let applicant-appellant-convict Pooran be released on bail in the above mentioned sessions case during pendency of this appeal on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the Court concerned, subject to following conditions.

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i. 50% of the amount of the fine shall remain stayed and 50% of the amount of the fine shall be deposited by the applicant-appellant in the district court within a month from the actual date of his release from prison.

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ii. The applicant- appellant shall cooperate in the early disposal of appeal without seeking unnecessary adjournments.

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iii. The appellant shall not indulge in any criminal activity or commission of any crime after being released from jail.

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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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Observations of this court are only with regard to disposal of this application and shall not be having any bearing on the final outcome of the appeal.

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The trial court is directed to transmit the photostat copies of personal bond and bail bonds which would be filed by the applicant-appellant before it, while retaining copies of the same in its record.

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On Memo of Appeal

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List/put up this matter in the 2nd week of May, 2025.

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Order Date :- 7.4.2025 Shravan

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

Pooran v. Union of India Thru. Its Zonal Director Narcotics Control Bureau Lucknow

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Pooran v. Union of India Thru. Its Zonal Director Narcotics Control Bureau Lucknow

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