Agha Khan v. State of case of Uttarakhand

Heard learned counsel for the applicant, learned AGA for the State and perused the record. The instant bail application has been filed on behalf of the applicant with the prayer to release him on bail during the trial in Case Crime No. 154 of 2024, under Section 8/21 of NDPS Act, Police Station Tikait Nagar, District Barabanki. Contention of learned counsel for the applicant is that the applicant is innocent and he has falsely been implicated in the instant matter due to ulterior motive. He submits that as per prosecution case, 270 gm. contraband i.e. 'morphine' is said to be recovered from the possession of the applicant, which is slightest above than the commercial quantity and even there is no independent public eye witness of the recovery. He emphasized that there is violation of the mandate of the provision of Section 50 of NDPS Act, as on the basis of alleged consent of the applicant, the search and seizure is done and gazetted police officer was present. He added that the case of the present applicant is squarely covered with the ratio of judgment of the Apex Court rendered in the Arif Khan @ Agha Khan vs. State of case of Uttarakhand, (2018) 18 SCC 380, wherein it has been held that mandatory procedure of Section 50 of the NDPS Act has to be complied with in regard to search and recovery. He further argued that that except apart the above, the samples are taken on 22nd of April, 2024, whereas the same were received in the Forensic Science Laboratory on 9th of May, 2024 and for the period of about 16 days, there is no explanation with respect to the whereabouts of the samples. He also added that even the weight of the samples is not clear from any of the document appended alongwith the counter affidavit. Adding his argument, he submits that the police had beaten the applicant had he received 11 injuries over his body and thereafter he was arrested and his involvement is shown in committing the offence under the NDPS Act. He also submits that the applicant has explained 8 cases criminal history in paragraph 23 of the rejoinder affidavit and the chargesheet has been filed in the matter, therefore, there is no possibility that the applicant would tamper the evidences. Further submission is that the applicant is a law abiding citizen and he is languishing in jail since 22.04.2024 and he undertakes that he will not misuse the liberty of bail, if granted and would cooperate in the trial proceedings, thus, submission is that the applicant may be enlarged on bail. Per contra, learned AGA appearing for the State has opposed the contentions aforesaid and submits that 270gm. contraband substance i.e. morphine is said to be recovered from the possession of the applicant and the FSL report is corroborating with the story of the prosecution case and the crime is heinous in nature, as such, he is not entitled for bail. Having considered the submissions of learned counsels for the parties and after perusal of the record, it transpires that the quantity of recovered contraband is 270gm. which is slightest above than the commercial quantity; there is violation of the mandate of the provision of Section 50 of the NDPS Act and the period of about 16 days, between sending the samples to the FSL and receiving the same by it, is not explained and there is no documentary evidence of the quantity of the recovered contraband; the applicant has explained 8 cases criminal history and he is languishing in jail since 22.04.2024 and he has undertaken that he will not misuse the liberty of bail, if granted and would cooperate in the trial proceedings. Considering the submissions of learned counsels for the parties, nature of accusation and severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment and considering larger mandate of the Article 21 of the Constitution of India and, without expressing any view on the merits of the case, I find it to be a fit case of bail. the applicant-Lal Let aforementioned crime be released on bail, on his furnishing a personal bond and two sureties each in the involved Babu like amount, to the satisfaction of the court concerned, with the following conditions:- (1) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, or otherwise during the investigation or trial; (2) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. He 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 of the Indian Penal Code; (3) 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.; and (4) 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. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, the trial court shall initiate proceedings against him, in accordance with law under Section 174-A of the Indian Penal Code. The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison. It is clarified that the observations made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the merits of the case. Order Date :- 20.2.2025 kkv/

Heard learned counsel for the applicant, learned AGA for the State and perused the record. The instant bail application has been filed on behalf of the applicant with the prayer to release him on bail during the trial in Case Crime No. 154 of 2024, under Section 8/21 of NDPS Act, Police Station Tikait Nagar, District Barabanki. Contention of learned counsel for the applicant is that the applicant is innocent and he has falsely been implicated in the instant matter due to ulterior motive. He submits that as per prosecution case, 270 gm. contraband i.e. 'morphine' is said to be recovered from the possession of the applicant, which is slightest above than the commercial quantity and even there is no independent public eye witness of the recovery. He emphasized that there is violation of the mandate of the provision of Section 50 of NDPS Act, as on the basis of alleged consent of the applicant, the search and seizure is done and gazetted police officer was present. He added that the case of the present applicant is squarely covered with the ratio of judgment of the Apex Court rendered in the Arif Khan @ Agha Khan vs. State of case of Uttarakhand, (2018) 18 SCC 380, wherein it has been held that mandatory procedure of Section 50 of the NDPS Act has to be complied with in regard to search and recovery. He further argued that that except apart the above, the samples are taken on 22nd of April, 2024, whereas the same were received in the Forensic Science Laboratory on 9th of May, 2024 and for the period of about 16 days, there is no explanation with respect to the whereabouts of the samples. He also added that even the weight of the samples is not clear from any of the document appended alongwith the counter affidavit. Adding his argument, he submits that the police had beaten the applicant had he received 11 injuries over his body and thereafter he was arrested and his involvement is shown in committing the offence under the NDPS Act. He also submits that the applicant has explained 8 cases criminal history in paragraph 23 of the rejoinder affidavit and the chargesheet has been filed in the matter, therefore, there is no possibility that the applicant would tamper the evidences. Further submission is that the applicant is a law abiding citizen and he is languishing in jail since 22.04.2024 and he undertakes that he will not misuse the liberty of bail, if granted and would cooperate in the trial proceedings, thus, submission is that the applicant may be enlarged on bail. Per contra, learned AGA appearing for the State has opposed the contentions aforesaid and submits that 270gm. contraband substance i.e. morphine is said to be recovered from the possession of the applicant and the FSL report is corroborating with the story of the prosecution case and the crime is heinous in nature, as such, he is not entitled for bail. Having considered the submissions of learned counsels for the parties and after perusal of the record, it transpires that the quantity of recovered contraband is 270gm. which is slightest above than the commercial quantity; there is violation of the mandate of the provision of Section 50 of the NDPS Act and the period of about 16 days, between sending the samples to the FSL and receiving the same by it, is not explained and there is no documentary evidence of the quantity of the recovered contraband; the applicant has explained 8 cases criminal history and he is languishing in jail since 22.04.2024 and he has undertaken that he will not misuse the liberty of bail, if granted and would cooperate in the trial proceedings. Considering the submissions of learned counsels for the parties, nature of accusation and severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment and considering larger mandate of the Article 21 of the Constitution of India and, without expressing any view on the merits of the case, I find it to be a fit case of bail. the applicant-Lal Let aforementioned crime be released on bail, on his furnishing a personal bond and two sureties each in the involved Babu like amount, to the satisfaction of the court concerned, with the following conditions:- (1) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, or otherwise during the investigation or trial; (2) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. He 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 of the Indian Penal Code; (3) 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.; and (4) 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. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, the trial court shall initiate proceedings against him, in accordance with law under Section 174-A of the Indian Penal Code. The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison. It is clarified that the observations made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the merits of the case. Order Date :- 20.2.2025 kkv/