Kalau @ Kamlakant v. State of U.P. Thru. Prin. Secy. Home Lko

Court No. - 12 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3273 of 2023 Applicant :- Kalau @ Kamlakant Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Rakesh Kumar Tripathi Counsel for Opposite Party :- G.A. Hon'ble Pankaj Bhatia,J.

¶1Heard learned counsel for the applicant, learned AGA and perused the record.

¶2The accused-applicant seeks bail in Case Crime No.419 of 2022 under section 8/22 NDPS Act, P.S. Sadarpur, District Sitapur.

¶3In terms of the FIR, allegedly on the basis of a search carried out, fifteen small packets containing alprazolam powder weighing 421 grams were recovered, out of which, fifty grams was drawn as a sample and the balance was sealed.

¶4In the light of the said allegations, the submission of the counsel for the applicant is that the recovery was not affected in the presence of any independent witness, as such, there was non-compliance of Section 50 of the NDPS Act. It is further argued that the sample was not drawn from fifteen packets separately and the FIR is silent as to from which packet, fifty grams sample was drawn. It is further argued that the mandate of Section 52-A of the NDPS Act has not been followed. Reliance is also placed 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. It is further argued that the applicant has no criminal history of an offence under the NDPS Act and continues to languish in custody since 29.12.2022 and not even one witness has been adduced so far. As regards the criminal antecedents, the same have been explained in para 7 of the Rejoinder Affidavit.

¶5Learned AGA opposes the bail application by arguing that as the recovery is more than the commercial quantity, which is 100 grams in the case of aporazolam powder, thus, the test of section 37 of the NDPS Act is to be satisfied. It is admitted that the applicant has no criminal history of an offence under the NDPS Act.

¶6Considering the submissions made at the bar, considering the recovery to be more than the commercial quantity, the test of section 37 is to be satisfied. Section 37 came up for interpretation before the Hon'ble Supreme Court in the case of After hearing the counsels, with regard to the first condition of section 37, in view of the law laid down in the case of Mohd. Muslim @ Hussain vs. State (NCT of Delhi) 2023 Live Law

(SC) 260, where the 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. "

¶7The effect of non-following the mandate of section 52-A of the NDPS Act was also considered by the Supreme Court in the case of Yusuf @ Asif v. State; Criminal Appeal No.3191 of 2023 decided on 13.10.2023 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."

¶8Considering these two interpretations of Hon'ble the Apex Court, in the present case, primarily the recovery was not affected in the presence of any independent witnesses and the samples were not drawn in terms of the mandate of Section 52-A of the NDPS Act. Thus, on these two grounds alone, I can form a reasonable view that the prosecution may not be able to establish the offence on these infirmities. It is clarified that these are the observations only for the purpose of the bail consideration and would not affect the trial, as such, the first test of section 37 is satisfied in favour of the applicant. As the applicant has no criminal antecedents of an offence under the NDPS Act, the second of the twin conditions under section 37 is also satisfied.

¶9In view thereof and considering the law as explained in the case of Ranjitsingh Brahmajeetsing Sharma vs. State of Maharashtra, (2005) 5 SCC 294 the applicant is entitled for the bail. Thus, the bail application is allowed.

¶10Let the applicant Kalau @ Kamlakant be released on bail in aforesaid first information report number subject to his furnishing a personal bond and two reliable sureties each of the like amount 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 :- 8.4.2024 VNP/- High Court of Judicature at Allahabad, Lucknow Bench