Agha Khan v. State of Uttarakhand reported in

Hon'ble Ashutosh Srivastava,J.

1. Heard Sri Pramod Kumar, learned counsel for the applicant, Shri Purushottam Maurya, learned A.G.A. for the State and perused the record of the case.

2. The present bail application under Section 439 Cr.P.C. has been filed on behalf of applicant, Deepak, with a prayer to release him on bail in Case Crime No. 254 of 2024, under Section 8/20 of Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station- Dadri, District- Gautam Budh Nagar.

3. Learned counsel for the applicant has contended that as per prosecution version 130 Kg. of Ganja is alleged to have been recovered from vehicle bearing No. DL- 2CAL-7058 which was driven by the applicant. As per prosecution story, the alleged incident took place on 12.06.2024 while the police party of police station Dadri, District Mirzapur was on duty, they saw a white colour car of the aforesaid number and when the police gave indication for stopping the car, the driver tried to run away, but all the persons sitting in the car including the driver were arrested. They confessed that 65 bundles of Ganja, weighing 2 Kg each was loaded in the back of the car and during search, the aforesaid quantity of Ganja has been recovered from the alleged vehicle. In fact, no such recovery was effected from the applicant. It is further submitted that since such recovery is not supported by independent witness, possibility of his false implication in the crime cannot be ruled out. It is next contended that in the present case the prosecution has failed to follow strictly the provisions as contained in the N.D.P.S. Act. Compliance of Section 50 of the NDPS Act has not been made. The alleged consent is of no avail as has been held in the case of Arif Khan @ Agha Khan vs. State of Uttarakhand reported in 2018 Law Suit (SC) 420 wherein it has been held that the requirement of Section 50 was not fulfilled where the accused gave his consent in writing for search in absence of Magistrate. It is also argued that the applicant is absolutely innocent and has been falsely implicated in the present crime with a view to cause unnecessary harassment and victimize him. The applicant, who is in jail since 12.06.2024 having no criminal history to his credit, deserves to be released on bail. In case the applicant is released on bail he will not misuse the liberty of bail.

4. Per contra learned A.G.A. has opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage who is involved in supplying contraband, therefore, the applicant does not deserve any indulgence. In case the applicant is released on bail he will again indulge in similar activity.

5. I have considered the rival submissions advanced by learned counsel for the parties and perused the material available on record.

6. It is evident that during search contraband was alleged to be recovered from the conscious possession of the applicant, which is more than commercial quantity.

7. So far as the contention of learned counsel for the applicant that compliance of Section 50 of the Act had not been effected does not merit consideration as the recovery of the contraband is from the vehicle and not from the person of the applicant and further that the arresting officials did not comply with the mandatory provisions of search and seizure of narcotics substance as per the provisions of the NDPS Act is concerned, the Hon'ble the Apex Court in Criminal Appeal No. 5544 of 2024 (Special Leave Petition (Crl.) No. 12120 of 2024) Narcotics Control Bureau versus Kasif, decided on 20.12.2024 has held that sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone. The relevant portion of the aforesaid judgment is as under:- "39. The upshot of the above discussion may be summarized as under: (i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act. (ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act. (iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances. (iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone. (v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused. (vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act."

8. In the light of the facts and circumstances of the present case, it would be inappropriate to discuss the evidence in depth at this stage because it is likely to influence the trial of the accused. But, from the perusal of the evidences, collected during investigation so far, prima facie, the involvement of the accused in the present case cannot be ruled out. No reason is found to falsely implicate the applicant/accused. Therefore, there is no good ground to release the applicant- accused on bail at this stage. All the contentions raised by the learned counsel for the applicant pertain to the merits of the case and the same cannot be considered while considering application for grant of bail. This court is unable to form an opinion at this stage that the accused has not committed an offence.

9. In the ultimate conclusion, considering the facts and circumstances of the case, gravity of the offence, severity of punishment, in my opinion, no case for bail is made out. Accordingly, the bail application is hereby rejected.

10. It is clarified that the observations made regarding the bail application is limited to the decision of the bail application and any observations made herein shall not effect the trial of the case. Order Date :- 12.5.2025 v.k.updh.

Hon'ble Ashutosh Srivastava,J.

1. Heard Sri Pramod Kumar, learned counsel for the applicant, Shri Purushottam Maurya, learned A.G.A. for the State and perused the record of the case.

2. The present bail application under Section 439 Cr.P.C. has been filed on behalf of applicant, Deepak, with a prayer to release him on bail in Case Crime No. 254 of 2024, under Section 8/20 of Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station- Dadri, District- Gautam Budh Nagar.

3. Learned counsel for the applicant has contended that as per prosecution version 130 Kg. of Ganja is alleged to have been recovered from vehicle bearing No. DL- 2CAL-7058 which was driven by the applicant. As per prosecution story, the alleged incident took place on 12.06.2024 while the police party of police station Dadri, District Mirzapur was on duty, they saw a white colour car of the aforesaid number and when the police gave indication for stopping the car, the driver tried to run away, but all the persons sitting in the car including the driver were arrested. They confessed that 65 bundles of Ganja, weighing 2 Kg each was loaded in the back of the car and during search, the aforesaid quantity of Ganja has been recovered from the alleged vehicle. In fact, no such recovery was effected from the applicant. It is further submitted that since such recovery is not supported by independent witness, possibility of his false implication in the crime cannot be ruled out. It is next contended that in the present case the prosecution has failed to follow strictly the provisions as contained in the N.D.P.S. Act. Compliance of Section 50 of the NDPS Act has not been made. The alleged consent is of no avail as has been held in the case of Arif Khan @ Agha Khan vs. State of Uttarakhand reported in 2018 Law Suit (SC) 420 wherein it has been held that the requirement of Section 50 was not fulfilled where the accused gave his consent in writing for search in absence of Magistrate. It is also argued that the applicant is absolutely innocent and has been falsely implicated in the present crime with a view to cause unnecessary harassment and victimize him. The applicant, who is in jail since 12.06.2024 having no criminal history to his credit, deserves to be released on bail. In case the applicant is released on bail he will not misuse the liberty of bail.

4. Per contra learned A.G.A. has opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage who is involved in supplying contraband, therefore, the applicant does not deserve any indulgence. In case the applicant is released on bail he will again indulge in similar activity.

5. I have considered the rival submissions advanced by learned counsel for the parties and perused the material available on record.

6. It is evident that during search contraband was alleged to be recovered from the conscious possession of the applicant, which is more than commercial quantity.

7. So far as the contention of learned counsel for the applicant that compliance of Section 50 of the Act had not been effected does not merit consideration as the recovery of the contraband is from the vehicle and not from the person of the applicant and further that the arresting officials did not comply with the mandatory provisions of search and seizure of narcotics substance as per the provisions of the NDPS Act is concerned, the Hon'ble the Apex Court in Criminal Appeal No. 5544 of 2024 (Special Leave Petition (Crl.) No. 12120 of 2024) Narcotics Control Bureau versus Kasif, decided on 20.12.2024 has held that sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone. The relevant portion of the aforesaid judgment is as under:- "39. The upshot of the above discussion may be summarized as under: (i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act. (ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act. (iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances. (iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone. (v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused. (vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act."

8. In the light of the facts and circumstances of the present case, it would be inappropriate to discuss the evidence in depth at this stage because it is likely to influence the trial of the accused. But, from the perusal of the evidences, collected during investigation so far, prima facie, the involvement of the accused in the present case cannot be ruled out. No reason is found to falsely implicate the applicant/accused. Therefore, there is no good ground to release the applicant- accused on bail at this stage. All the contentions raised by the learned counsel for the applicant pertain to the merits of the case and the same cannot be considered while considering application for grant of bail. This court is unable to form an opinion at this stage that the accused has not committed an offence.

9. In the ultimate conclusion, considering the facts and circumstances of the case, gravity of the offence, severity of punishment, in my opinion, no case for bail is made out. Accordingly, the bail application is hereby rejected.

10. It is clarified that the observations made regarding the bail application is limited to the decision of the bail application and any observations made herein shall not effect the trial of the case. Order Date :- 12.5.2025 v.k.updh.