High Court

Appellant :- Salauddin Respondent :- The Union Of India Thru. Directorate Of Revenue Intelligence (Dri) Lucknow Counsel for Appellant :- Rajeev Srivastava,Chandan Srivastava,Ichchha Singh,Parmanand Gupta Counsel for Respondent :- Digvijay Nath Dubey Hon'ble Alok Mathur,J. Order on Crl. Misc. (Bail) Application No. 1 of 2024

1. Heard Sri Parmanand Gupta, learned counsel for the applicant-appellant as well as Sri Digvijay Nath Dubey, learned learned counsel appearing for the Union of India- respondent.

2. The applicant-appellant has been convicted and sentenced vide judgment and order dated 30.04.2024, passed by the Additional District & Sessions Judge, NDPS Act, Lucknow in Criminal Case No. 102 of 2020, DRI Complaint Case No. 12 of 2019, under Sections 8/20/25/27A/28/29 of NDPS Act, 1985, Police Station - DRI, Lucknow, District Lucknow, whereby convicting and sentencing the appellant to ten years rigorous imprisonment and fine of Rs.1,00,000/- and in default of payment of fine further period of additional imprisonment for one year for the offence under sections 8/20 N.D.P.S. Act and further convicting and sentencing the appellant to ten years rigorous imprisonment and fine of Rs.1,00,000/-, and in default of payment of fine further period of additional imprisonment for one year for the offence under Section 20/29 of N.D.P.S. Act.

3. According to the prosecution it has been stated that on 30.7.2019 at around 7.30 P.M. reliable information was received by the Authorities with regard to movement of certain narcotic drugs sealed in the container in Truck No. U.P.-78- CN-1881. It is stated that a team was duly constituted to intercept the same truck and upon arrival on the Awadh Crossing, Kanpur Road, Lucknow. They took along with themselves two independent persons, namely, Amitt Kumar and Kamal Kishore.

4. It has been further stated that around 5.00 Aaa.M. on 31.07.2019 they spotted the said Truck No. U.P. 78 CN 1881 on V.I.P. Road Manak Nagar Flyover and on interception they found three persons were sitting in the truck, namely, Yaseen, who was driver, Salahuddin the applicant who was sitting in middle and the third person was Salim. The truck was thereafter taken to safe place and was searched, from which 264 bags were found containing 'Ganja' whose total weight was 1083 Kgs. The statements of all the accused persons were duly recorded.

5. It has been submitted by learned counsel for the appellant that during the trial there was no compliance with regard to the recovery that the entire facts are false and fabricated and there is no cogent evidence linking the appellant to the said offence. He submits that despite the fact that two independent witnesses were taken for interception of the said vehicle but none of the witness was produced during the trial to support the case of the prosecution.

6. He further submits that the entire conviction is based on their confessional statement recorded by the Authorities under Section 67 of the N.D.P.S. Act. cannot be suspended

7. He further submits that in the case of Tofan Singh Vs. State of Tamilnadu AIR 2020 SC 5592 that conviction only on the basis of confessional statement under Section 67 of the N.D.P.S. Act cannot be suspended stating that the officers who are invested the powers under Section 53 of the NDPS Act are "police officers" within the meaning of Section 25 of the Evidence Act as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.

8. It has been further submitted that there is no evidence linking the appellant with the said offence or with the vehicle carrying with contraband goods and other two accused are the owner and driver of the said vehicle and the third person is the cleaner but the appellant was only the passenger who has taken lift in sitting to the said vehicle in the said offence. This defence was taken by the appellant during the trial and rejected cursorily without recording any finding in paragraph 37 of the said judgement. The prosecution could not prove otherwise that the statement made by the appellant was false or could adduce any evidence linking the appellant in the said offence.

9. Accordingly, this Court is of the view that the conviction having been made solely on relying the statement under Section 67 of the N.D.P.S. Act would be sufficient to entitle the appellant for acquittal and consequently in the present case after considering the aforesaid facts the appellant is entitled to be released on bail.

10. Shri Digvijay Nath Dubey, learned counsel appearing for the Union of India- respondent on the other hand has opposed the bail application of the appellant but could not contradict the aforesaid facts.

11. Heard learned counsel for the parties and perused the record.

12. Considering the overall facts and circumstances of the case, the material on record, I am of the considered opinion that this is a fit case for grant of bail to the appellant-applicant.

13. Let, the applicant-appellant Salahudin, convicted in Criminal Case No. 102 of 2020, DRI Complaint Case No. 12 of 2019, under Sections 8/20/25/27A/28/29 of NDPS Act, 1985, Police Station - DRI, Lucknow, District Lucknow, be released on bail on his furnishing a personal bond and two sureties to the satisfaction of the Magistrate/Court concerned.

14. Half of the fine imposed by the trial Court upon the appellant shall remain stayed. The remaining half amount of fine shall be deposited by the appellant-applicant within one month from the date of his release.

15. It is made clear that the bail is being granted to the applicant on the condition that the counsel for the appellant shall appear to argue the appeal as and when the appeal is listed. In case of default of the counsel and non-payment of fine as directed above, the bail is likely to be cancelled.

16. It is further made clear that in case the applicant/appellant commits any offence while on bail, the prosecution would be at liberty to file an application for cancellation of bail.

17. The Magistrate/Court concerned shall forward copy of the bail bonds as well as list of sureties, to this Court for keeping the same on record.

15. The bail application stands disposed of. Order on Appeal List the appeal in due course. . Order Date :- 1.5.2025 Muk (Alok Mathur, J.)

Appellant :- Salauddin Respondent :- The Union Of India Thru. Directorate Of Revenue Intelligence (Dri) Lucknow Counsel for Appellant :- Rajeev Srivastava,Chandan Srivastava,Ichchha Singh,Parmanand Gupta Counsel for Respondent :- Digvijay Nath Dubey Hon'ble Alok Mathur,J. Order on Crl. Misc. (Bail) Application No. 1 of 2024

1. Heard Sri Parmanand Gupta, learned counsel for the applicant-appellant as well as Sri Digvijay Nath Dubey, learned learned counsel appearing for the Union of India- respondent.

2. The applicant-appellant has been convicted and sentenced vide judgment and order dated 30.04.2024, passed by the Additional District & Sessions Judge, NDPS Act, Lucknow in Criminal Case No. 102 of 2020, DRI Complaint Case No. 12 of 2019, under Sections 8/20/25/27A/28/29 of NDPS Act, 1985, Police Station - DRI, Lucknow, District Lucknow, whereby convicting and sentencing the appellant to ten years rigorous imprisonment and fine of Rs.1,00,000/- and in default of payment of fine further period of additional imprisonment for one year for the offence under sections 8/20 N.D.P.S. Act and further convicting and sentencing the appellant to ten years rigorous imprisonment and fine of Rs.1,00,000/-, and in default of payment of fine further period of additional imprisonment for one year for the offence under Section 20/29 of N.D.P.S. Act.

3. According to the prosecution it has been stated that on 30.7.2019 at around 7.30 P.M. reliable information was received by the Authorities with regard to movement of certain narcotic drugs sealed in the container in Truck No. U.P.-78- CN-1881. It is stated that a team was duly constituted to intercept the same truck and upon arrival on the Awadh Crossing, Kanpur Road, Lucknow. They took along with themselves two independent persons, namely, Amitt Kumar and Kamal Kishore.

4. It has been further stated that around 5.00 Aaa.M. on 31.07.2019 they spotted the said Truck No. U.P. 78 CN 1881 on V.I.P. Road Manak Nagar Flyover and on interception they found three persons were sitting in the truck, namely, Yaseen, who was driver, Salahuddin the applicant who was sitting in middle and the third person was Salim. The truck was thereafter taken to safe place and was searched, from which 264 bags were found containing 'Ganja' whose total weight was 1083 Kgs. The statements of all the accused persons were duly recorded.

5. It has been submitted by learned counsel for the appellant that during the trial there was no compliance with regard to the recovery that the entire facts are false and fabricated and there is no cogent evidence linking the appellant to the said offence. He submits that despite the fact that two independent witnesses were taken for interception of the said vehicle but none of the witness was produced during the trial to support the case of the prosecution.

6. He further submits that the entire conviction is based on their confessional statement recorded by the Authorities under Section 67 of the N.D.P.S. Act. cannot be suspended

7. He further submits that in the case of Tofan Singh Vs. State of Tamilnadu AIR 2020 SC 5592 that conviction only on the basis of confessional statement under Section 67 of the N.D.P.S. Act cannot be suspended stating that the officers who are invested the powers under Section 53 of the NDPS Act are "police officers" within the meaning of Section 25 of the Evidence Act as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.

8. It has been further submitted that there is no evidence linking the appellant with the said offence or with the vehicle carrying with contraband goods and other two accused are the owner and driver of the said vehicle and the third person is the cleaner but the appellant was only the passenger who has taken lift in sitting to the said vehicle in the said offence. This defence was taken by the appellant during the trial and rejected cursorily without recording any finding in paragraph 37 of the said judgement. The prosecution could not prove otherwise that the statement made by the appellant was false or could adduce any evidence linking the appellant in the said offence.

9. Accordingly, this Court is of the view that the conviction having been made solely on relying the statement under Section 67 of the N.D.P.S. Act would be sufficient to entitle the appellant for acquittal and consequently in the present case after considering the aforesaid facts the appellant is entitled to be released on bail.

10. Shri Digvijay Nath Dubey, learned counsel appearing for the Union of India- respondent on the other hand has opposed the bail application of the appellant but could not contradict the aforesaid facts.

11. Heard learned counsel for the parties and perused the record.

12. Considering the overall facts and circumstances of the case, the material on record, I am of the considered opinion that this is a fit case for grant of bail to the appellant-applicant.

13. Let, the applicant-appellant Salahudin, convicted in Criminal Case No. 102 of 2020, DRI Complaint Case No. 12 of 2019, under Sections 8/20/25/27A/28/29 of NDPS Act, 1985, Police Station - DRI, Lucknow, District Lucknow, be released on bail on his furnishing a personal bond and two sureties to the satisfaction of the Magistrate/Court concerned.

14. Half of the fine imposed by the trial Court upon the appellant shall remain stayed. The remaining half amount of fine shall be deposited by the appellant-applicant within one month from the date of his release.

15. It is made clear that the bail is being granted to the applicant on the condition that the counsel for the appellant shall appear to argue the appeal as and when the appeal is listed. In case of default of the counsel and non-payment of fine as directed above, the bail is likely to be cancelled.

16. It is further made clear that in case the applicant/appellant commits any offence while on bail, the prosecution would be at liberty to file an application for cancellation of bail.

17. The Magistrate/Court concerned shall forward copy of the bail bonds as well as list of sureties, to this Court for keeping the same on record.

15. The bail application stands disposed of. Order on Appeal List the appeal in due course. . Order Date :- 1.5.2025 Muk (Alok Mathur, J.)