High Court · 2025

1. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

2. The 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. 0213 of 2023, under sections 8/20 of the N.D.P.S. Act,1985 Police Station-Kotwali Nanpara, District- Bahraich.

3. As per prosecution version, the contraband substance, i.e. 1 K.G. and 200 grams of 'Charas', is said to be recovered from the possession of the applicant.

4. 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 added that 1 K.G. and 200 grams of 'Charas' is said to be recovered from the possession of the applicant, which is above the commercial quantity, but, there is no public eye witness of the alleged recovery. He next added that the recovery memo is evident that the same is done in contravention to the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act,1985 (hereinafter referred to as 'Act, 1985). Section 50 of the Act, 1985 is quoted hereinunder :- "50. Conditions under which search of persons shall be conducted.-(1) When any ofÏcer 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 Gazetted OfÏcer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the ofÏcer may detain the person until he can bring him before the Gazetted OfÏcer or the Magistrate referred to in sub-section (1). (3) The Gazetted OfÏcer 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 ofÏcer 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 OfÏcer 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 Gazetted OfÏcer 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 ofÏcer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a a copy thereof to his immediate ofÏcial superior."

5. Referring the aforesaid, he submits that it is mandatory that as soon as, a person is detained, he shall be produced before the gazetted ofÏcer or the Magistrate and such search shall be done before the gazetted ofÏcer or the Magistrate. Sub. Clause (v ) of Section 50 of the Act, provides that if such an ofÏcer authorized under section 42 of the Act,1985, has reasons to believe that it is not possible to take such a person to be searched to the nearest gazetted ofÏcer or the Magistrate, he may instead of taking such person to the nearest gazetted ofÏcer or the Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973. Section 100 of the Cr.P.C. is quoted hereinunder :- "100. Persons in charge of closed place to allow search.- (1) Whenever any place liable to search of inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the ofÏcer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein. (2) If ingress into such place cannot be so obtained, the ofÏcer or other person executing the warrant may proceed in the manner provided by sub-section (2) of section 47. (3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. (4) Before making a search under this Chapter, the ofÏcer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. (5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such ofÏcer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it. (6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person. (7) When any person is searched under sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person. (8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code (45 of 1860)."

6. Referring the aforesaid provisions, he submits that it has been provided under sub. section (4) of the section 100 of the Cr.P.C. that before making a search under this chapter, the ofÏcer or the other person,shall ensure that such search or seizure be done, while calling two or more independent and respectable inhabitants of the locality.

7. He argued that it is an admitted fact that the applicant was not brought before any gazetted ofÏcer or the Magistrate and even the procedure of sub. section (iv) of Section 100 of the Cr.P.C. has also not been adhered to. He added that the recovery memo is also evident that some agreement was got signed by the applicant and the ofÏcers concerned, though there is no such procedure prescribed under the Act,1985.

8. In support of his contentions, 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 and submits that the case of the present applicant is squarely covered with the ratio of Judgment abovesaid. He also added that in view of the above, the matter would not lead to the punishment and conclusion of trial would take considerable period of time. He submits that the applicant has four cases criminal history, which has been explained and he is languishing in jail since 26-04-2023. Further submitted that the applicant undertakes that in case, he is granted bail, he will not misuse the liberty of bail and would cooperate in the trial proceedings.

9. Per contra, learned A.G.A. has opposed the contentions aforesaid and submits that the applicant was arrested on spot and contraband substance i.e. 1 K.G. and 200 grams of 'Charas' is recovered from his possession from a hand bag. He also added that there are four cases criminal history of the applicant and ample evidences against him that he was involved in committing the offence and as such, he is not entitled for any relief.

10. Having heard the learned counsel for the parties and after perusal of the material placed on record, particularly with respect to non compliance of the provisions of Section 50 of the Act, 1985 as well as Section 100 of the Cr.P.C., indicates that the trial would vitiate in the eyes of law.

11. This court has taken note of the fact that the case of the present applicant is squarely covered with the ratio of Judgment in the case of Arif Khan @ Agha Khan(Supra); further the applicant has explained four cases criminal history and the chargesheet has been filed and there is no complaint that the applicant has ever absconded from the investigation proceedings. He is languishing in jail since 26-04-2023 and as per the argument of learned counsel for the applicant, the trial would take considerable period of time and further the applicant has undertaken that if he is granted bail, he will not misuse the liberty of the same and would cooperate in the trial proceedings.

12. 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.

13. Let the applicant,Noor Alam, involved in the aforementioned crime be released on bail, on his furnishing a personal bond and two sureties each 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 sufÏcient 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.; (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.

14. 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.

15. 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 AKS ANUJ KRISHNA SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench

1. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

2. The 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. 0213 of 2023, under sections 8/20 of the N.D.P.S. Act,1985 Police Station-Kotwali Nanpara, District- Bahraich.

3. As per prosecution version, the contraband substance, i.e. 1 K.G. and 200 grams of 'Charas', is said to be recovered from the possession of the applicant.

4. 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 added that 1 K.G. and 200 grams of 'Charas' is said to be recovered from the possession of the applicant, which is above the commercial quantity, but, there is no public eye witness of the alleged recovery. He next added that the recovery memo is evident that the same is done in contravention to the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act,1985 (hereinafter referred to as 'Act, 1985). Section 50 of the Act, 1985 is quoted hereinunder :- "50. Conditions under which search of persons shall be conducted.-(1) When any ofÏcer 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 Gazetted OfÏcer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the ofÏcer may detain the person until he can bring him before the Gazetted OfÏcer or the Magistrate referred to in sub-section (1). (3) The Gazetted OfÏcer 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 ofÏcer 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 OfÏcer 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 Gazetted OfÏcer 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 ofÏcer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a a copy thereof to his immediate ofÏcial superior."

5. Referring the aforesaid, he submits that it is mandatory that as soon as, a person is detained, he shall be produced before the gazetted ofÏcer or the Magistrate and such search shall be done before the gazetted ofÏcer or the Magistrate. Sub. Clause (v ) of Section 50 of the Act, provides that if such an ofÏcer authorized under section 42 of the Act,1985, has reasons to believe that it is not possible to take such a person to be searched to the nearest gazetted ofÏcer or the Magistrate, he may instead of taking such person to the nearest gazetted ofÏcer or the Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973. Section 100 of the Cr.P.C. is quoted hereinunder :- "100. Persons in charge of closed place to allow search.- (1) Whenever any place liable to search of inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the ofÏcer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein. (2) If ingress into such place cannot be so obtained, the ofÏcer or other person executing the warrant may proceed in the manner provided by sub-section (2) of section 47. (3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. (4) Before making a search under this Chapter, the ofÏcer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. (5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such ofÏcer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it. (6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person. (7) When any person is searched under sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person. (8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code (45 of 1860)."

6. Referring the aforesaid provisions, he submits that it has been provided under sub. section (4) of the section 100 of the Cr.P.C. that before making a search under this chapter, the ofÏcer or the other person,shall ensure that such search or seizure be done, while calling two or more independent and respectable inhabitants of the locality.

7. He argued that it is an admitted fact that the applicant was not brought before any gazetted ofÏcer or the Magistrate and even the procedure of sub. section (iv) of Section 100 of the Cr.P.C. has also not been adhered to. He added that the recovery memo is also evident that some agreement was got signed by the applicant and the ofÏcers concerned, though there is no such procedure prescribed under the Act,1985.

8. In support of his contentions, 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 and submits that the case of the present applicant is squarely covered with the ratio of Judgment abovesaid. He also added that in view of the above, the matter would not lead to the punishment and conclusion of trial would take considerable period of time. He submits that the applicant has four cases criminal history, which has been explained and he is languishing in jail since 26-04-2023. Further submitted that the applicant undertakes that in case, he is granted bail, he will not misuse the liberty of bail and would cooperate in the trial proceedings.

9. Per contra, learned A.G.A. has opposed the contentions aforesaid and submits that the applicant was arrested on spot and contraband substance i.e. 1 K.G. and 200 grams of 'Charas' is recovered from his possession from a hand bag. He also added that there are four cases criminal history of the applicant and ample evidences against him that he was involved in committing the offence and as such, he is not entitled for any relief.

10. Having heard the learned counsel for the parties and after perusal of the material placed on record, particularly with respect to non compliance of the provisions of Section 50 of the Act, 1985 as well as Section 100 of the Cr.P.C., indicates that the trial would vitiate in the eyes of law.

11. This court has taken note of the fact that the case of the present applicant is squarely covered with the ratio of Judgment in the case of Arif Khan @ Agha Khan(Supra); further the applicant has explained four cases criminal history and the chargesheet has been filed and there is no complaint that the applicant has ever absconded from the investigation proceedings. He is languishing in jail since 26-04-2023 and as per the argument of learned counsel for the applicant, the trial would take considerable period of time and further the applicant has undertaken that if he is granted bail, he will not misuse the liberty of the same and would cooperate in the trial proceedings.

12. 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.

13. Let the applicant,Noor Alam, involved in the aforementioned crime be released on bail, on his furnishing a personal bond and two sureties each 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 sufÏcient 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.; (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.

14. 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.

15. 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 AKS ANUJ KRISHNA SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench