High Court · 2025

Applicant :- Subham Opposite Party :- State of U.P. Counsel for Applicant :- Bindeshwari Prasad Mishra,Dhirendra Kumar Srivastava,Disha Srivastava,Hari Krishna Singh Counsel for Opposite Party :- G.A. Hon'ble Ashutosh Srivastava,J.

1. Heard Shri D.K. Srivastava, learned counsel for the applicant, Shri Puneet Kumar Singh, learned AGA for the State-respondents and perused the record.

2. This bail application under Section 439 of Cr.P.C. has been moved on behalf of accused-applicant, Subham, seeking enlargement on bail in Case Crime No. 506 of 2023, under Sections 21/22 N.D.P.S., Police Station Highway, District Mathura, during the pendency of trial in the court below.

3. Learned counsel for the applicant has argued that the applicant is innocent and has been falsely implicated in the very case for ulterior motive. The applicant is in custody in the aforesaid case crime number since 17.5.2023. The bail application of the applicant was rejected by the Special Judge (NDPS Act)/Additional District & Sessions Judge, Court No.7, Mathura.

4. Learned counsel for applicant has argued that as per the prosecution story as set up in the FIR the applicant is stated to have been apprehended by a police party on picket duty during patrolling duty by private vehicle on the highway when the applicant on seeing the police party started to run. During investigation and search, 350 gms. of Alprazolam powder along with black polythene bag is stated to have been recovered from the possession of the applicant. Sample of 50 gms. was drawn from the contraband recovered and the applicant was arrested at 5.15 a.m. on 17.5.2023 (i.e. next day). It is also argued that the incident has not occurred as alleged in the FIR. The applicant is a truck driver and has been falsely implicated as a consequence of not meeting with the illegal demands of the police personnel. It is also argued that admittedly the patrolling duty by the policy party was being carried out by use of a private vehicle and such private vehicle could not be used for patrolling purposes without prior sanction which is wanting. The consent document executed in compliance of Section 50 bears the signature of Sub Inspector only and as such does not satisfy the requirement of Section 50 of the NDPS Act. It is also argued that the police personnel have not complied with the provisions of Sections 42, 43, 44 of the NDPS Act as also Section 100(4) and 100(8) Cr.P.C. It is submitted that the applicant has not indulged in the offence as alleged. The criminal history of three other cases have been explained in para 12, 13 and 14 of the bail application. The applicant is not a flight risk. Hence prayer for bail has been made.

5. Per contra, learned AGA to the bail application submits that the applicant has been caught red handed along with the contraband Alprazolam powder which is more than the commercial quantity, the recovery memo was prepared complying with the provisions of the NDPS Act. The sample was taken and sent for forensic examination in the prescribed proforma and the FSL Report has confirmed that recovered contraband is Alprazolam. The applicant in compliance of Section 50 of NDPS Act has given his consent in writing which has been brought on record as C.A.-II to the counter affidavit. The consent document bears the signature of the Sub Inspector and the applicant. It is accordingly prayed that the bail plea of the applicant be rejected.

6. I have heard learned counsel for the applicant as also the learned AGA for the State and have perused the record.

7. Much emphasis has been laid by the counsel for the applicant that the police personnel while conducting the search and seizure upon the applicant failed to comply with the mandatory conditions stipulated by Section 50 of the NDPS Act inasmuch as they proceeded to obtain the forceful consent of the applicant on the consent document which was singed by the Sub Inspector of the Police Station concerned in purported compliance of Section 50 of the NDPS Act. Besides the samples collected despite being weighed by electronic weigh fell short of the 50 gms. taken which was received by FSL only on 27.5.2023. A perusal of the FSL report dated 30.5.2023 shows that no date of sending the samples to the FSL has been mentioned and only the date of receipt (i.e. 27.5.2023) has been mentioned. Admittedly the quantity of the sample sealed and sent was 50 gms. but the FSL Report reveals that only 46 gms. was received. The prosecution has failed to disclose the reasons for this difference. No doubt the difference is only 4 gms. and may have occurred at the time of weighing the sample. It also raises a doubt upon the quantity of the contraband recovered from the applicant.

8. Section 50 of the NDPS Act reads as under :- "(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazette Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection (1). (3) The Gazette Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazette Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy- two hours send a copy thereof to his immediate official superior."

9. Section 50(1) NDPS Act mandate that when an officer duly authorized under Section 42 is about to search a person under the provisions of Sections 41, 42 or 43 he shall if the the person about to be searched so requires take the person without unnecessary delay to the nearest gazetted officer of any of the department mentioned in Section 42 or to nearest Magistrate. The intent behind the provision is to ensure that the person about to be searched is made aware of the option to be taken before a third person other than the one who is conducting the search. Delay should be avoided. If the person to be searched does not express his right to be searched before a gazetted officer or Magistrate and give his consent to be examined by the officer authorized u/s 42. The officer authorized is required to follow the mandate of Section 100 Cr.P.C.

10. In the case at hand, the consent document filed as Annexure C.A-II bearing the signature of Sub Inspector conducting the search an endorsement of the applicant thereon does not inspire confidence as no independent witness has signed it. Further there is no compliance of Section 50(6) of the NDPS Act and no material has been placed on record by the prosecution in this regard.

11. The record reveals that the applicant is in jail since 17.5.2023. The counter affidavit is silent about the status of the trial. In such circumstances the Court is of the opinion that the applicant is entitled to be released on bail.

12. Accordingly, the bail application is allowed.

13. Let the accused-applicant, Subham, involved in above mentioned case crime number be released on bail, on his executing a personal bond and two reliable sureties each, in the like amount to the satisfaction of the court concerned, subject to the following conditions: a. The applicant will not tamper with the evidence. b. The applicant will not indulge in any criminal activity. c. The applicant will not pressurize/intimidate the prosecution witnesses and co-operate in the trial. d. The applicant will appear regularly on each and every date fixed by the trial court, unless his personal appearance is exempted through counsel by the court concerned.

14. In the event of breach of any of the aforesaid conditions, the court below will be at liberty to proceed to cancel his bail. Order Date :- 20.2.2025 Md Faisal MOHD FAISAL High Court of Judicature at Allahabad

Applicant :- Subham Opposite Party :- State of U.P. Counsel for Applicant :- Bindeshwari Prasad Mishra,Dhirendra Kumar Srivastava,Disha Srivastava,Hari Krishna Singh Counsel for Opposite Party :- G.A. Hon'ble Ashutosh Srivastava,J.

1. Heard Shri D.K. Srivastava, learned counsel for the applicant, Shri Puneet Kumar Singh, learned AGA for the State-respondents and perused the record.

2. This bail application under Section 439 of Cr.P.C. has been moved on behalf of accused-applicant, Subham, seeking enlargement on bail in Case Crime No. 506 of 2023, under Sections 21/22 N.D.P.S., Police Station Highway, District Mathura, during the pendency of trial in the court below.

3. Learned counsel for the applicant has argued that the applicant is innocent and has been falsely implicated in the very case for ulterior motive. The applicant is in custody in the aforesaid case crime number since 17.5.2023. The bail application of the applicant was rejected by the Special Judge (NDPS Act)/Additional District & Sessions Judge, Court No.7, Mathura.

4. Learned counsel for applicant has argued that as per the prosecution story as set up in the FIR the applicant is stated to have been apprehended by a police party on picket duty during patrolling duty by private vehicle on the highway when the applicant on seeing the police party started to run. During investigation and search, 350 gms. of Alprazolam powder along with black polythene bag is stated to have been recovered from the possession of the applicant. Sample of 50 gms. was drawn from the contraband recovered and the applicant was arrested at 5.15 a.m. on 17.5.2023 (i.e. next day). It is also argued that the incident has not occurred as alleged in the FIR. The applicant is a truck driver and has been falsely implicated as a consequence of not meeting with the illegal demands of the police personnel. It is also argued that admittedly the patrolling duty by the policy party was being carried out by use of a private vehicle and such private vehicle could not be used for patrolling purposes without prior sanction which is wanting. The consent document executed in compliance of Section 50 bears the signature of Sub Inspector only and as such does not satisfy the requirement of Section 50 of the NDPS Act. It is also argued that the police personnel have not complied with the provisions of Sections 42, 43, 44 of the NDPS Act as also Section 100(4) and 100(8) Cr.P.C. It is submitted that the applicant has not indulged in the offence as alleged. The criminal history of three other cases have been explained in para 12, 13 and 14 of the bail application. The applicant is not a flight risk. Hence prayer for bail has been made.

5. Per contra, learned AGA to the bail application submits that the applicant has been caught red handed along with the contraband Alprazolam powder which is more than the commercial quantity, the recovery memo was prepared complying with the provisions of the NDPS Act. The sample was taken and sent for forensic examination in the prescribed proforma and the FSL Report has confirmed that recovered contraband is Alprazolam. The applicant in compliance of Section 50 of NDPS Act has given his consent in writing which has been brought on record as C.A.-II to the counter affidavit. The consent document bears the signature of the Sub Inspector and the applicant. It is accordingly prayed that the bail plea of the applicant be rejected.

6. I have heard learned counsel for the applicant as also the learned AGA for the State and have perused the record.

7. Much emphasis has been laid by the counsel for the applicant that the police personnel while conducting the search and seizure upon the applicant failed to comply with the mandatory conditions stipulated by Section 50 of the NDPS Act inasmuch as they proceeded to obtain the forceful consent of the applicant on the consent document which was singed by the Sub Inspector of the Police Station concerned in purported compliance of Section 50 of the NDPS Act. Besides the samples collected despite being weighed by electronic weigh fell short of the 50 gms. taken which was received by FSL only on 27.5.2023. A perusal of the FSL report dated 30.5.2023 shows that no date of sending the samples to the FSL has been mentioned and only the date of receipt (i.e. 27.5.2023) has been mentioned. Admittedly the quantity of the sample sealed and sent was 50 gms. but the FSL Report reveals that only 46 gms. was received. The prosecution has failed to disclose the reasons for this difference. No doubt the difference is only 4 gms. and may have occurred at the time of weighing the sample. It also raises a doubt upon the quantity of the contraband recovered from the applicant.

8. Section 50 of the NDPS Act reads as under :- "(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazette Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection (1). (3) The Gazette Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazette Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy- two hours send a copy thereof to his immediate official superior."

9. Section 50(1) NDPS Act mandate that when an officer duly authorized under Section 42 is about to search a person under the provisions of Sections 41, 42 or 43 he shall if the the person about to be searched so requires take the person without unnecessary delay to the nearest gazetted officer of any of the department mentioned in Section 42 or to nearest Magistrate. The intent behind the provision is to ensure that the person about to be searched is made aware of the option to be taken before a third person other than the one who is conducting the search. Delay should be avoided. If the person to be searched does not express his right to be searched before a gazetted officer or Magistrate and give his consent to be examined by the officer authorized u/s 42. The officer authorized is required to follow the mandate of Section 100 Cr.P.C.

10. In the case at hand, the consent document filed as Annexure C.A-II bearing the signature of Sub Inspector conducting the search an endorsement of the applicant thereon does not inspire confidence as no independent witness has signed it. Further there is no compliance of Section 50(6) of the NDPS Act and no material has been placed on record by the prosecution in this regard.

11. The record reveals that the applicant is in jail since 17.5.2023. The counter affidavit is silent about the status of the trial. In such circumstances the Court is of the opinion that the applicant is entitled to be released on bail.

12. Accordingly, the bail application is allowed.

13. Let the accused-applicant, Subham, involved in above mentioned case crime number be released on bail, on his executing a personal bond and two reliable sureties each, in the like amount to the satisfaction of the court concerned, subject to the following conditions: a. The applicant will not tamper with the evidence. b. The applicant will not indulge in any criminal activity. c. The applicant will not pressurize/intimidate the prosecution witnesses and co-operate in the trial. d. The applicant will appear regularly on each and every date fixed by the trial court, unless his personal appearance is exempted through counsel by the court concerned.

14. In the event of breach of any of the aforesaid conditions, the court below will be at liberty to proceed to cancel his bail. Order Date :- 20.2.2025 Md Faisal MOHD FAISAL High Court of Judicature at Allahabad