Mishri v. State of U.P. Thru. Prin. Secy. Home Lko

Court No. - 12 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11029 of 2022 Applicant :- Mishri Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Dinesh Kumar Shukla,Avinash Kumar Srivastava,Farooq Ayoob,Rajesh Kumar Awasthi,Sandeep Singh Counsel for Opposite Party :- G.A. Hon'ble Pankaj Bhatia,J.

¶1Supplementary affidavit filed today by the applicant is taken on record.

¶2Heard learned counsel for the applicant as well as learned A.G.A. and perused the record.

¶3The applicant seeks enlargement on bail in FIR No.285 of 2022, under Sections 8/20 of the NDPS Act, Police Station Khairighat, District Bahraich.

¶4In terms of the FIR, it was alleged that on the basis of a search carried out, three persons were stopped and on the basis of search carried out on them, 1 kilogram 100 grams of Charas was allegedly recovered in the bag carried by the applicant.

¶5In the light of the aforesaid, the submission of the Counsel for the applicant is that in terms of the FIR, three persons were apprehended with the offending goods. He further argues that the manner in which the sample was drawn, was clearly violative of Section 52-A of the NDPS Act. The Counsel for the applicant places reliance on the judgment of the Hon'ble Supreme Court in the case of Yusuf alias Asif vs State; AIR 2023 SC 5041 wherein, the Hon'ble Supreme Court had observed particularly in para 16 that non-compliance of sampling process as prescribed under Section 52-A of the NDPS Act would lead the trial being vitiated. Para 16 reads 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."

¶6The Counsel for the applicant further argues that even in terms of the FIR, the sample was collected on 27.06.2022 and the same was sent on 13.07.2022 for chemical analysis without there being any valid explanation with regard to the delay, which is also contrary to the two standing orders. He further argues that the applicant is in custody since 27.06.2022 and has no criminal antecedents under NDPS Act, as such, the applicant may be enlarged on bail.

¶7Learned A.G.A. vehemently opposed the bail prayer by arguing that in terms of the FSL report, which has been filed along with the counter affidavit, the offending goods were found to be Charas and considering the recovery, which is more than the commercial quantity, the bail should be denied in view of the mandate of Section 37 of the NDPS Act. He further argues that the applicant has criminal history of 11 cases, although, none of them is under NDPS Act.

¶8In rejoinder, the Counsel for the applicant while placing on record the bail orders through supplementary affidavit argues that in all the cases, except two cases which have never been started against the applicant, the applicant is on bail.

¶9Considering the submissions made at the bar and as the recovery is more than the commercial quantity, the test of Section 37 is to be satisfied. The scope of Section 37 came up for consideration before the Hon'ble Supreme Court in the case of Mohd Muslim @ Hussain v. State (NCT of Delhi); 2023 LiveLaw (SC) 260 wherein 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. . The 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."

¶10Considering the manner, in which, Section 39 is to be interpreted; in the present case the manner, in which, the sample was drawn, is not in terms of the mandate of Section 52-A of the NDPS Act and the effect of not following the mandate of Section 52-A was clearly dealt with by the Hon'ble Supreme Court in the case of Yusuf alias Asif vs State (Supra), I am of the firm view that based upon the said sampling, the prosecution may not able to establish the case against the applicant. The first condition of the twin conditions prescribed under Section 37 of NDPS Act stands satisfied. These findings are tentative and only for the purpose of bail.

¶11As the applicant has no criminal antecedents under the NDPS Act, the second of the twin test is also satisfied in view of the law laid down in the case of Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr.; (2005) 5 SCC 294. Thus, on both the grounds and also considering the fact that even the charges have not been filed till date as argued by the Counsel for the applicant, I am of the view that the applicant is entitled to be released on bail. Accordingly, the bail application is allowed.

¶12Let the applicant Mishri be released on bail in the aforesaid first information report number on his furnishing personal bonds and two reliable sureties of the like amount 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 :- 15.4.2024 akverma High Court of Judicature at Allahabad, Lucknow Bench