Praveen Yadav @ Prince v. State of U.P. Thru. Prin. Secy. Home Lko

Court No. - 12 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7871 of 2023 Applicant :- Praveen Yadav @ Prince Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Sukh Deo Singh,Paritosh Shukla,Smriti Counsel for Opposite Party :- G.A. Hon'ble Pankaj Bhatia,J.

¶1Heard learned counsel for the applicant as well as learned A.G.A. and perused the record.

¶2In terms of the FIR, it was alleged that on the basis of a search carried out over the applicant from his pocket allegedly 300 grams of smack powder was recovered.

¶3In the light of the said, the counsel for the applicant argues that as the recovery was effected from the person of the applicant, the mandate of Section 50 NDPS Act ought to have been followed, which has not been followed in the present case. It is further argued that no independent witness was present at the time of search. She further argued that though the recovery is more than commercial quantity, however neither the mandate of Section 50 of NDPS Act has been followed nor Section 52-A of the NDPS Act has been followed. Reliance placed upon the judgment of the Supreme Court in the case of Mohd Muslim @ Hussain vs. State (NCT of Delhi) reported in 2023 Live Law (SC) 260, in the case of Yusuf @ Asif Vs. State : Criminal Appeal No.3191 of 2023 arising out of S.L.P.(Crl.) No.3010 of 2023 and in the case of Ranjitsing Brahmajeetsing Sharma vs State Of Maharashtra & Anr : AIR 2005 SC 2277.

¶4Learned A.G.A. opposed the bail prayer by arguing that the recovery is more than the commercial quantity prescribed, as such, the test of Section 37 NDPS Act has to be satisfied. It bears from the record that the FSL report has not come so far in respect in respect to the samples which were sent.

¶5Considering the submissions made at the Bar, as the recovery is allegedly more than the commercial quantity, the test of Section 37 NDPS Act has to be satisfied. Section 37 of the NDPS Act came up for interpretation by the Supreme court in the case of Mohd Muslim @ Hussain vs. State (Supra), wherein the Supreme Court interpreted Section 37 of the NDPS Act as under:- "18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is "not guilty of such offence" and that he is not likely to commit any offence while on bail. What is meant by "not guilty" when all the evidence is not before the court? It can only be prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co-operating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws ? be balanced against the public interest.

¶19A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.

¶20The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused's guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India vs. Ratan Malik19). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having 19 (2009) 2 SCC 624 regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail."

¶6In view of the interpretation as given by the Supreme Court as recorded above, in the present case, the mandate of Section 50 of the NDPS Act was not observed. There were no independent witnesses of the search and even the mandate of Section 52-A NDPS Act has not been followed. There is no FSL report till date.

¶7Considering these submissions, a prima facie view can be formed that based upon the search and sampling, the prosecution may not be able to establish the offence against the applicant, as such, the first test of Section 37 of the NDPS Act is satisfied in favour of the applicant. As regards, second of the twin test, as the applicant has no criminal history under the NDPS Act, the second of the twin test is also satisfied in favour of the applicant in view of the law as explained in the case of Ranjitsing Brahmajeetsing Sharma vs State Of Maharashtra (Supra). The other criminal antecedent of the applicant not relating to the NDPS, have been duly explained in paragraph 15 of the bail application.

¶8In view of the reasoning as recorded above, I am of the view that the applicant is entitled to be released on bail. Accordingly, the bail application is allowed.

¶9Let the applicant Praveen Yadav @ Prince be released on bail in FIR/ Case Crime No. 184 of 2023, under Section 8/21 NDPS Act, Police Station Gosaiganj, District Sultanpur, on his furnishing personal bonds and two reliable sureties of Rs.20,000/- each to the satisfaction of the court concerned with the following conditions:

(a) The applicant shall execute a bond to undertake to attend the hearings;

(b) The applicant shall not commit any offence similar to the offence of which he is accused or suspected of the commission; and

(c) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. Order Date :- 26.2.2024 Arun High Court of Judicature at Allahabad, Lucknow Bench