High Court
Case Details
Neutral Citation No. - 2023:AHC:150249 Court No. - 77 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30474 of 2023 Applicant :- Pradeep Singh Opposite Party :- Union of India Counsel for Applicant :- Ajai Kumar Counsel for Opposite Party :- Ashish Pandey Hon'ble Mrs. Jyotsna Sharma,J.
Legal Reasoning
(v) The evidence has been collected to prima facie establish that this contraband was procured from Vishakhapatnam for sale at different districts of U.P. and that the applicant was in continuous contact of Satya Prakash Saroj, the co-accused with regard to the movement of consignment; it was instant applicant who made arrangement for movement of the consignment from Vishakhapatnam to its destination and bail of Satya Prakash Saroj has already been rejected by this court in Criminal Misc. Bail Application No. 5253 of 2022vide order dated 18.07.2023. (vi) The bail application moved on behalf of the one co-accused Komal @ Vishal Mauray has been dismissed on merit by an order dated 9.8.2021 passed in Criminal Misc. Bail Application No. 28407 of 2021, likewise the application of co-accused Aanand Kumar Yadav has already been dismissed by an order dated 5.1.2023 passed in Criminal Misc. Bail Application No. 28133 of 2021, another bail application moved on behalf of the co-accused Sahil Yadav was rejected earlier on 2.2.2022, his second bail application too has been dismissed on merit by an order dated 13.1.2023 passed in Criminal Misc. Bail Application No. 20506 of 2022. (vii) The learned counsel for the NCB relies upon the judgment given in Union of India vs. Mohan Lal and Another, Criminal Appeal No. 3652 of 2012 to stress the point that in this case procedure was followed and the search was made before the Magistrate. Further, reliance has been placed on Union of India (NCB) 2022 LiveLaw (SC) vs. Khalliluddin, wherein the Apex Court, in the light of provisions of section- 37 NDPS Act held that the accused ought not to have been released on bail, as also on National Narcotics Bureau vs. Mohit Aggarawal, (2022) LiveLaw (SC) 673, Union of India vs. Ajay Kumar Sing @ Pappu, (2023) 0 SC 285, wherein the Supreme Court again, referring to provisions of section- 37 NDPS Act held that those provisions should be considered before bail is granted. It is argued that there are no reasonable grounds for believing that the applicant was not guilty of the offence and that he is not likely to commit any offence while on bail. (viii) Further, reliance has been placed on judgement of the Supreme Court in Union of India through NCB vs. Mohammad Nawaz Khan, (2021) 10 SCC 100, wherein the Supreme Court dealt with question of possession and conscious possession in a matter where polythene packets containing 3.3 kg. of narcotic substance was found hidden under a place below the front bonnet of the car and cancelled the bail granted by the High Court to the respondent. On the basis of above judgment, it is argued by the NCB that the bail in the above-noted case was cancelled and similar circumstances exists in the present case. (ix) The applicant has utterly failed to point out any credible or plausible ground before this Court to believe that he is not guilty of the alleged offence and under such circumstances period of incarceration loses its significance for the purpose of grant of bail; period of custody in itself cannot be sole ground for bail. (x) The Mini Truck was carrying a huge quantity of 1000 kg. of ganja and one of the packs of 25 kg. was transferred to Mahindra Scorpio and these facts show that the applicant was involved right from the movement of Mini truck from Vishakhapatnam to the place of occurrence. (xi) The crime was committed in an organized manner; there is enough material on record to raise the presumption of culpable mental state as provided under section- 35 NDPS Act, 1985 read with its explanation. (xii) Lastly, it is argued that the argument of planting or false implication has no legs to stand in view of huge recovery of 1,000 kg. of narcotic substance from the two vehicles involved. 6. I considered the nature of accusations, the severity of punishment, the evidence proposed to be given, the questions raised as regard compliance/non-compliance of mandatory provisions of law, the place of recovery, lack of any plausible defence theory and all other attending facts and circumstances in the light of rival submissions. In my view, a case for bail is not made out. 7. Accordingly, this bail application is dismissed. Order Date :- 27.7.2023 #Vikram/- Digitally signed by :- Digitally signed by :- VIKRAM GUPTA VIKRAM GUPTA High Court of Judicature at Allahabad High Court of Judicature at Allahabad
Arguments
1. Heard Sri Ajai Kumar, learned counsel for the applicant and Ms. Vijeta Srivastava, Advocate holding brief for Sri Ashish Pandey, learned counsel for the N.C.B. 2. The applicant is seeking enlargement on bail in Case Crime No. 19 of 2021 under sections 8, 20, 27A, 29 of N.D.P.S. Act, Police Station- NCB Lucknow, District Lucknow. 3. As per the prosecution story, on the basis of confidential information received by Intelligence Officer, NCB, Luknow, a team was constituted and after observing other formalities and procuring some independent witnesses as well, the STF and NCB team intercepted a Tata Mini Truck and a white Mahindra Scorpio coming from the side of the Riva; seven persons sitting in two vehicles were asked to alight from; the persons sitting on the Eicher Mini Truck disclosed their names as Anand Kumar Yadav, Sahil Yadav, Komal @ Vishal and Satya Prakash Saroj; the person, who was sitting on the driver seat in Mahindra Scorpio disclosed his name as Prateek Singh and the persons sitting besides the driver were Vinod Yadav and Pradeep Singh (the present applicant); as per the prosecution case, all the norms and the mandatory provisions of NDPS Act including Section 50 were complied with; search was carried out and 39 sacks containing 25 kg. each totaling 975 kg. of ganja was found carefully concealed below mangoes; the mangoes had gone rotten; the suspected substance was weighed and were tested then and there with drug detection kit by the NCB team; one of the sacks containing 25 kg. of ganja was already transferred to the Mahindra Scorpio for delivering to certain persons; a total quantity of 1000 kg. ganja was recovered; both the vehicles were intercepted by the team and seized together. 4. It is contended on behalf of the applicant that nothing has been recovered from his personal possession. As per prosecution story, the applicant was found sitting in a Mahindra Scorpio beside the driver seat. It is contended that only 25 kgs was recovered from this vehicle; his case is different from the case of the other co-accused persons, who were traveling in the Eicher Mini truck. He cannot be presumed to have been in conscious possession of the narcotic substance. It is said that the mandatory provisions of NDPS applicable at the time of search and arrest of the accused persons have not been complied with. The confidential information received by the Officer of the NCB was not communicated to his superior officers within a prescribed period of 72 hours and therefore, provisions of Section- 42 N.D.P.S. Act have also been violated. The preparation of the recovery memo Form NCB-1 at the NCB Office brings the whole case in doubtful category. The samples were not drawn at the place of seizure; the standing guideline orders regarding sampling were not complied with. Further, the provisions of sections- 50, 42, 42(2), 55, 57 NDPS Act were not complied with; in addition, it is argued that the applicant is in custody in this case since last about two years and as he cannot be kept detained for indefinite period of time and therefore, he should be set at liberty by grant of bail. It is also contended on behalf of the applicant that the co-accused Prateek has been granted bail by an order dated 10.4.2023 passed in Criminal Misc. Application No. 46 of 2022. 5. The application for bail is opposed by the NCB highlighting following facts, circumstances and arguments as below:- (i) The case of the instant applicant cannot be treated differently from the case of the co- accused Satya Prakash Saroj and other persons who were found sitting in the Mini Eicher truck from where huge recovery of 975 kgs of 'ganja' kept in 39 packs in a dala of the vehicle was recovered in as much that the crime was being committed in an organized manner each and every person involved had a role to play starting from purchase, procurement of ganja from a person named Dada from Vishakhapatnam, then transporting the same stealthy, crossing several State borders and distributing/selling to others for further sale/delivery at specified places; in fact the mini truck was carrying 1,000/- kgs of 'ganja' in 40 packs of 25 kgs each; one pack of 25 kgs was recovered from this Mahindra Scorpio as it was transferred from the truck to the Scorpio for the purpose of delivery to other persons; this pack of 25 kgs was recovered from the space between the two rear seats; it was the same kind of pack which was recovered from the truck; the applicant, two other persons on Mahindra Scorpio and the persons who were occupants of the truck were committing the crime intandem creating a chain of business; the provisions of section 37 of the NDPS Act come into operation; there is nothing to presume that the applicant had no knowledge of such a business going on between the persons riding on the truck and the persons who were riding on a Mahindra Scorpio. (ii) From the material on record and from the contents of the search-cum-recovery memo, it is quite clear that all the mandatory provisions of NDPS Act were duly complied with. As far as the compliance of Section 50 of NDPS Act is concerned, the accused persons were produced before the Gazetted Officer for the purpose of search; moreover, the provisions of section- 50 N.D.P.S. Act are essentially meant in the matters of personal search. (iii) All the arguments with regard to the non-compliance of provisions of law have been advanced before this Court for the sake of arguments only and they lack substance. (iv) The applicant has failed to point out any plausible explanation or cause for false implication.