High Court · 2025

Hon'ble Ashutosh Srivastava,J.

1. Heard Shri I.D. Mishra, learned counsel for the applicant, Shri Rakesh Kumar Singh, learned A.G.A. for the State and perused the records.

2. The instant bail application under Section 483 B.N.S.S., 2023 has been filed seeking enlargement on Bail in Case Crime No.0001 of 2025, under Section 8/20/29 of the N.D.P.S. Act, P.S. - Rohaniya, District- Varuna Commissionerate Varanasi, U.P. during the pendency of the trial before the Court below. The bail application of the applicant before the Court below was rejected by the Additional Sessions Judge, Court No.14, Varanasi vide order dated 10.1.2025 and the applicant is languishing in jail since 1.1.2025.

3. Learned counsel for the applicant has argued that the applicant is entirely innocent and has been falsely implicated in this very case crime number for ulterior motive. Learned counsel for the applicant has further argued that the F.I.R. giving rise to the case crime number aforementioned was lodged by Inspector of P.S. - Rohinya, Distict- Varuna Commissionerate Varanasi,on 1.1.2025 at 6:32 AM during the vehicle checking and the Bolero Pickups No. OD 07 AW 7900 was stopped and the applicant refused to grease the palm of the first informant. Recovery of 141.846 grams of Ganja in 28 packets was alleged to have been recovered from the vehicle of the applicant. The applicant and co-accused Raj Kishore were apprehended. Besides the recovery of the contraband Ganja and Rs.670/-, a sum of Rs. 570/- was recovered from the co- accused and from the applicant his Adhar Card, one torch, Mobile phone of Vivo Company and Rs.670/- as stated to have been recovered. Learned counsel for the applicant has also argued that the Police has not completed with the mandate of Section 50 and 52-A of the NDPS Act inasmuch as the search and seizure has been made without the consent of the applicant or the co-accused. No sampling of the seized contraband has been done in terms of Rule 10 of the NDPS (Seizure, Storage, Sampling and Disposal) Rules, 2022. The learned counsel has placed the relevant Rule 10 of the Rules, 2022 to buttress the point that the recovery was neither prepared in the presence of a Magistrate nor it was certified by the Magistrate as mandated by the Apex Court in Yusuf @ Asif Vs. State (AIR 2023 SC 5041). The applicant has no criminal antecedents and undertakes to abide by the terms and conditions imposed if released on bail and shall cooperate in the trial. Hence a prayer for bail has been made.

4. Per contra, learned A.G.A. has vehemently opposed the Bail to the applicant by submitting that 141.846 grams of contraband Ganja was recovered from the vehicle of which the applicant is the owner contained in 28 packets. The vehicle was being driven by the applicant. Recovery was made in the presence of the independent witness but he denied to stand as witness and the recovery memo was prepared on the spot and the same was signed by the applicant. A copy of the memo was handed over to the applicant on the spot. The offence against the applicant is clearly made out and the bail application warrants outright rejection.

5. However, the Apex Court in the Case of Union of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798 has held that the court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. In this case prosecution case itself is in doubt due to non- adherence to sampling procedure, not to say of recording any finding regarding guilt of the applicant.

6. Considering the facts of the case and keeping in mind the arguments advanced on behalf of the parties, the ratio of the Apex Court's judgment in the case of Union of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798, larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/ State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Let applicant- Sheelu Bahera be released on bail in the aforesaid case crime number on her furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions- (i) The applicant 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; (ii) In case, the applicant misuses the liberty of bail 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, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code. (iii) 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. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail. Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted. Order Date :- 23.5.2025 Sachin SACHIN TIWARI High Court of Judicature at Allahabad

Hon'ble Ashutosh Srivastava,J.

1. Heard Shri I.D. Mishra, learned counsel for the applicant, Shri Rakesh Kumar Singh, learned A.G.A. for the State and perused the records.

2. The instant bail application under Section 483 B.N.S.S., 2023 has been filed seeking enlargement on Bail in Case Crime No.0001 of 2025, under Section 8/20/29 of the N.D.P.S. Act, P.S. - Rohaniya, District- Varuna Commissionerate Varanasi, U.P. during the pendency of the trial before the Court below. The bail application of the applicant before the Court below was rejected by the Additional Sessions Judge, Court No.14, Varanasi vide order dated 10.1.2025 and the applicant is languishing in jail since 1.1.2025.

3. Learned counsel for the applicant has argued that the applicant is entirely innocent and has been falsely implicated in this very case crime number for ulterior motive. Learned counsel for the applicant has further argued that the F.I.R. giving rise to the case crime number aforementioned was lodged by Inspector of P.S. - Rohinya, Distict- Varuna Commissionerate Varanasi,on 1.1.2025 at 6:32 AM during the vehicle checking and the Bolero Pickups No. OD 07 AW 7900 was stopped and the applicant refused to grease the palm of the first informant. Recovery of 141.846 grams of Ganja in 28 packets was alleged to have been recovered from the vehicle of the applicant. The applicant and co-accused Raj Kishore were apprehended. Besides the recovery of the contraband Ganja and Rs.670/-, a sum of Rs. 570/- was recovered from the co- accused and from the applicant his Adhar Card, one torch, Mobile phone of Vivo Company and Rs.670/- as stated to have been recovered. Learned counsel for the applicant has also argued that the Police has not completed with the mandate of Section 50 and 52-A of the NDPS Act inasmuch as the search and seizure has been made without the consent of the applicant or the co-accused. No sampling of the seized contraband has been done in terms of Rule 10 of the NDPS (Seizure, Storage, Sampling and Disposal) Rules, 2022. The learned counsel has placed the relevant Rule 10 of the Rules, 2022 to buttress the point that the recovery was neither prepared in the presence of a Magistrate nor it was certified by the Magistrate as mandated by the Apex Court in Yusuf @ Asif Vs. State (AIR 2023 SC 5041). The applicant has no criminal antecedents and undertakes to abide by the terms and conditions imposed if released on bail and shall cooperate in the trial. Hence a prayer for bail has been made.

4. Per contra, learned A.G.A. has vehemently opposed the Bail to the applicant by submitting that 141.846 grams of contraband Ganja was recovered from the vehicle of which the applicant is the owner contained in 28 packets. The vehicle was being driven by the applicant. Recovery was made in the presence of the independent witness but he denied to stand as witness and the recovery memo was prepared on the spot and the same was signed by the applicant. A copy of the memo was handed over to the applicant on the spot. The offence against the applicant is clearly made out and the bail application warrants outright rejection.

5. However, the Apex Court in the Case of Union of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798 has held that the court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. In this case prosecution case itself is in doubt due to non- adherence to sampling procedure, not to say of recording any finding regarding guilt of the applicant.

6. Considering the facts of the case and keeping in mind the arguments advanced on behalf of the parties, the ratio of the Apex Court's judgment in the case of Union of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798, larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/ State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Let applicant- Sheelu Bahera be released on bail in the aforesaid case crime number on her furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions- (i) The applicant 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; (ii) In case, the applicant misuses the liberty of bail 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, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code. (iii) 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. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail. Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted. Order Date :- 23.5.2025 Sachin SACHIN TIWARI High Court of Judicature at Allahabad