High Court · 2025

Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material placed on record. 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.108 of 2024, under section 8/20 of Narcotic Drugs and Psychotropic Substances Act, P.S.-Dannahar, District -Mainpuri. As per prosecution version, the contraband substance, i.e. 56 kg. 'Ganja' is said to be recovered from the joint possession of two co-accused persons including the present applicant, though the applicant was not involved in committing the aforesaid offence. Learned counsel appearing for the applicant submits that the applicant is innocent and has falsely been planted by the police in the instant matter. He next added that as per the prosecution story, the contraband substance, i.e. 56 kg. 'Ganja' is said to be recovered from the joint possession of two co-accused persons including the present applicant, though the same is false and concocted. He further added that there is no independent public eye-witness of the alleged recovery. He submits that there is non-compliance of Section 50 of N.D.P.S. Act and in support of his contention, he has placed reliance upon the Judgment of the Apex Court rendered in the case of Arif Khan @ Agha Khan vs. State of Uttarakhand, (2018) 18 SCC 380 wherein it has been held that mandatory procedure of Section 50 of the N.D.P.S. Act has to be complied with in regard to search and recovery. He further submits that procedure prescribed under the N.D.P.S. Act read with the Rules, have been flouted and as such, the whole recovery proceedings vitiates in the eyes of law. He further submits that similarly situated co-accused, namely, Harendra Singh has already been enlarged on bail by this Court vide order dated 18.09.2024 passed in Crl. Misc. Bail Application No. 26124 of 2024. In support of his contentions, he has placed reliance upon the Judgment of the Hon'ble Apex Court in the case of Yusuf @ Asif Versus State, reported in 2023 SCC Online SC 1328 and submits that the case of the present applicant is also covered with the ratio of the Judgment abovesaid. He further submits that the applicant has 5 cases criminal history which has been explained and he is languishing in jail since 04.06.2024. He has also shown other falsity in the story of the prosecution and submitted that in case, the applicant is granted bail, he will not misuse the liberty of bail and would cooperate in the trial proceedings. Per contra, learned A.G.A. has opposed the prayer for grant of bail and submits that applicant was involved in committing the aforesaid offence as such, he is not entitled for any relief. Having heard the learned counsels for the parties and after perusal of material placed on record, it is evident that no independent public eye witness made the signature upon the recovery memo; there seems to be non compliance of Section 50 of the NDPS Act; the specific plea has been taken that sampling has been done from one packet, out of 28 packets, which is said to be recovered, but the same facts have not been denied in the Counter Affidavit filed on behalf of the State therefore, the ratio of Judgment of the Hon'ble Apex Court in the case of Yusuf @ Asif (supra) is also applicable in the case of the present applicant and as such the proceedings with respect to sampling etc. vitiates in the eyes of law; applicant has explained 5 cases criminal history; similarly situated co- accused has been enlarged on bail and he is languishing in jail since 04.06.2024, coupled with the fact that he has undertaken that in case, he is granted bail, he will not misuse the liberty of same and would cooperate in the trial proceedings. Considering the submissions of learned counsel of both sides, 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 case of bail. Let the applicant-Subhash, involved in the aforementioned crime be released on bail, on his furnishing a personal bond and two sureties each (one local surety) in the 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 :- 23.1.2025 kkv/ KRISHAN KUMAR High Court of Judicature at Allahabad

Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material placed on record. 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.108 of 2024, under section 8/20 of Narcotic Drugs and Psychotropic Substances Act, P.S.-Dannahar, District -Mainpuri. As per prosecution version, the contraband substance, i.e. 56 kg. 'Ganja' is said to be recovered from the joint possession of two co-accused persons including the present applicant, though the applicant was not involved in committing the aforesaid offence. Learned counsel appearing for the applicant submits that the applicant is innocent and has falsely been planted by the police in the instant matter. He next added that as per the prosecution story, the contraband substance, i.e. 56 kg. 'Ganja' is said to be recovered from the joint possession of two co-accused persons including the present applicant, though the same is false and concocted. He further added that there is no independent public eye-witness of the alleged recovery. He submits that there is non-compliance of Section 50 of N.D.P.S. Act and in support of his contention, he has placed reliance upon the Judgment of the Apex Court rendered in the case of Arif Khan @ Agha Khan vs. State of Uttarakhand, (2018) 18 SCC 380 wherein it has been held that mandatory procedure of Section 50 of the N.D.P.S. Act has to be complied with in regard to search and recovery. He further submits that procedure prescribed under the N.D.P.S. Act read with the Rules, have been flouted and as such, the whole recovery proceedings vitiates in the eyes of law. He further submits that similarly situated co-accused, namely, Harendra Singh has already been enlarged on bail by this Court vide order dated 18.09.2024 passed in Crl. Misc. Bail Application No. 26124 of 2024. In support of his contentions, he has placed reliance upon the Judgment of the Hon'ble Apex Court in the case of Yusuf @ Asif Versus State, reported in 2023 SCC Online SC 1328 and submits that the case of the present applicant is also covered with the ratio of the Judgment abovesaid. He further submits that the applicant has 5 cases criminal history which has been explained and he is languishing in jail since 04.06.2024. He has also shown other falsity in the story of the prosecution and submitted that in case, the applicant is granted bail, he will not misuse the liberty of bail and would cooperate in the trial proceedings. Per contra, learned A.G.A. has opposed the prayer for grant of bail and submits that applicant was involved in committing the aforesaid offence as such, he is not entitled for any relief. Having heard the learned counsels for the parties and after perusal of material placed on record, it is evident that no independent public eye witness made the signature upon the recovery memo; there seems to be non compliance of Section 50 of the NDPS Act; the specific plea has been taken that sampling has been done from one packet, out of 28 packets, which is said to be recovered, but the same facts have not been denied in the Counter Affidavit filed on behalf of the State therefore, the ratio of Judgment of the Hon'ble Apex Court in the case of Yusuf @ Asif (supra) is also applicable in the case of the present applicant and as such the proceedings with respect to sampling etc. vitiates in the eyes of law; applicant has explained 5 cases criminal history; similarly situated co- accused has been enlarged on bail and he is languishing in jail since 04.06.2024, coupled with the fact that he has undertaken that in case, he is granted bail, he will not misuse the liberty of same and would cooperate in the trial proceedings. Considering the submissions of learned counsel of both sides, 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 case of bail. Let the applicant-Subhash, involved in the aforementioned crime be released on bail, on his furnishing a personal bond and two sureties each (one local surety) in the 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 :- 23.1.2025 kkv/ KRISHAN KUMAR High Court of Judicature at Allahabad