Shailendra Singh Alias Radhe v. State of U.P. Thru. Prin. Secy. Home, Lucknow, U.P

Court No. - 12 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1564 of 2024 Applicant :- Shailendra Singh Alias Radhe Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lucknow, U.P. Counsel for Applicant :- Shailendra Kumar Tiwari Counsel for Opposite Party :- G.A. Hon'ble Pankaj Bhatia,J.

¶1Counter affidavit filed today in Court is taken on record.

¶2Heard learned counsel for the applicant, learned AGA and perused the record.

¶3The applicant seeks enlargement on bail in FIR No.0436 of 2023, under Section 8/21 of NDPS Act, P.S. Jagdishpur, District Amethi.

¶4Learned counsel for the applicant argues that in terms of the recovery memo and the FIR, allegedly 300 gms of Smack was recovered from the pocket of the lower worn by the applicant and out of the said, 20 gm sample was drawn and was sent for verification after sealing the same. The recovery memo further records that there were no independent witnesses to the recovery.

¶5In the light of the said, the first submission of learned counsel for the applicant is that the mandate of Section 50 of NDPS Act has not been followed as the recovery was affected from the person of the applicant in terms of the averments contained in the FIR. He places reliance on the judgment of the Supreme Court in the case of Ranjan Kumar Chadha v. State of Himachal Prades; 2023 SCC OnLine SC 1262 to argue that it is well settled that where the recovery is affected from person, the mandate of Section 50 of NDPS Act is to be followed. He further argues that the sampling was not done before the Magistrate in terms of the mandate of Section 52A of the NDPS Act. He places reliance on the judgment of the Supreme Court in the case of Yusuf @ Asif v. State; Criminal Appeal No.3191 of 2023 decided on 13.10.2023. He further argues that the applicant has no criminal antecedent of an offence under the NDPS Act, thus, the applicant, who is in custody since

26.11.2023, should be enlarged on bail.

¶6Learned AGA has opposed the bail application by arguing that the recovery is more than the commercial quantity and the FSL report filed alongwith the counter affidavit today clearly indicates that the recovered contraband was indeed heroin and as such, considering the fact that more than commercial quantity was possessed by the applicant, the bail application should be rejected. He, however, does not deny that the applicant has no criminal antecedents of an offence under the NDPS Act; the other pending cases against the applicant are minor offences under the IPC on which cases the applicant is on bail.

¶7Considering the submissions made at the Bar, and considering the fact that the alleged recovery is more than the commercial quantity, as such, the test of Section 37 of NDPS Act has to be satisfied, I have considered the law as explained by the Supreme Court in the case of Mohd Muslim @ Hussain v. State (NCT of Delhi); 2023 LiveLaw (SC) 260 wherein while interpreting Section 37 of the NDPS Act, the Supreme Court has observed 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 a 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 Malik). 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. "

¶8The effect of not following the mandate of Section 52A of the NDPS Act was dealt with by the Supreme Court in the case of Yusuf @ Asif (supra) wherein the Supreme Court has observed as under: "16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated."

¶9In the present case, considering the fact that the mandate of Section 50 of the NDPS Act has not been followed, which is essential as the recovery was affected from the person of the applicant, coupled with the fact that mandate of Section 52A of NDPS Act has also not been followed, the first of the twin conditions prescribed under Section 37 of the NDPS Act is satisfied in favour of the applicant.

¶10As regards the second of the twin conditions prescribed under Section 37 of the NDPS Act, as the applicant has no criminal antecedents of an offence under the NDPS Act, in view of the law as explained in the case of Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr.;

(2005) 5 SCC 29, the second of the twin conditions is also satisfied.

¶11Thus, for all the reasons recorded above, the applicant is entitled to be enlarged on bail. In view thereof, the application is allowed.

¶12Let the applicant Shailendra Singh alias Radhe be released on bail in aforesaid FIR number on his furnishing a personal bond with two sureties of the like amount each to the satisfaction of 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 :- 29.2.2024 nishant High Court of Judicature at Allahabad, Lucknow Bench