Advocate Kapil Kumar Pandey

Prayagraj.

Allahabad High Court gave the order to release Afzal, who was arrested along with the ganja in the car he was traveling. The court said that in the view of this Court, it is a fit case to release the applicant on bail. “In the light of discussions made above, without expressing any opinion on the merits of the case, the instant bail application is allowed.’ Let the applicant – Afzal be released on bail.

Hon’ble Justice Sameer Jain Heard Sri Kapil Kumar Pandey, learned counsel for the applicant and Sri Suresh Bahadur Singh, learned AGA for the State.

The instant bail application has been filed seeking release of the applicant on bail in Case Crime No. 471 of 2022, under Sections 8/20 of The Narcotic Drugs and Psychotropic Substance Act, 1985, Police Station Tila Mod, District Ghaziabad during pendency of the trial.

According to the prosecution case, on the information, police intercepted two cars i.e. Renault Scrola and Maruti Suzuki SX- 4 and applicant was sitting in Maruti Suzuki SX-4 car and from the boot, ten packets (5 Kg. each) i.e. total 50 Kg. Ganja was recovered. It is further alleged that in the Maruti Car SX-4 along with applicant Monti was also present. It is further alleged that from the Renault Scrola Car total 70 Kg. Ganja in 14 packets (5 Kg. each) was recovered and in the Renault Scrola Car three persons were sitting.

Learned counsel for the applicant submitted that entire allegation made against the applicant is totally false and baseless and he is having no concern with the alleged recovered Ganja. He further submits that the alleged recovery was made although from a public place but no independent witness was taken. He further submits that applicant along with his friends were going to attend the wedding of his friend in Meerut but on the way, the police intercepted them and asked them to show the documents and when all the documents of the vehicle were shown then they started demanding Rs. 10,000/- and when applicant and his friends refused to fulfil their illegal demand then police falsely implicated them in the present matter including the applicant.

He further submits that at the time of recovery mandatory provisions of Section 50, 52-A of N.D.P.S. Act have not been complied with. He further submits that from the perusal of the recovery memo, it appears that after opening of ten packets, which were recovered from Maruti Suzuki SX-4, in which, applicant was present, the alleged contraband was mixed and thereafter 500 gram of sample was taken, which was contrary to law as from all the ten packets separate sample ought to be taken and it is clear cut violation of Standing Order/instructions No. 1 of 1989 dated 13.06.1989 issued by the Government of India under Section 52-A of N.D.P.S. Act. He placed reliance on the judgement of this Court in the case of Wali Hassan Vs. State of U.P. 2022 (7) ADJ 439 and Mohd Asageer Vs. N.C.B. 2022 LawSuit (All) 1468.

Learned counsel further submits that applicant is having no criminal history and he is in jail since 17.09.2022 and coaccused Monti, who was also sitting along with applicant in Maruti Suzuki Car, has been released on bail by the co-ordinate Bench of this Court vide order dated 03.01.2023 passed in Criminal Misc. Bail Application No. 57290 of 2022.
Per contra, learned AGA opposed the prayer for bail and submitted that along with applicant four accused persons were apprehended in two vehicles and from both the vehicles total 120 Kg Ganja was recovered and in the Maruti Suzuki SX-4 Car where applicant was sitting total 50 Kg. Ganja was recovered in ten packets (5 Kg. each), therefore, from the
possession of applicant more than commercial quantity of Ganja was recovered. He further submits that at the time of recovery mandatory provisions of N.D.P.S. Act have been complied with. Learned AGA further submits that similarly placed co-accused Monti has been released on bail by the coordinate Bench of this Court but from perusal of the bail order dated 03.01.2023 passed in Criminal Misc. Bail Application No.
57290 of 2022, it appears that while granting bail to Monty neither any reason has been assigned nor even provisions of Section 37 N.D.P.S. Act could be discussed, therefore, applicant
cannot be benefited with bail order of Monty.

He further submitted that in view of stringent provisions of Section 37 of
N.D.P.S. Act, the instant bail application is liable to be dismissed.

I have heard learned counsel for the parties and perused the record of the case. From the recovery memo, it appears that applicant and four other accused persons were intercepted by the police while they were in two different vehicles and from the vehicle (Maruti
Suzuki SX-4) in which, applicant was present ten packets (5 Kg. each) i.e. total 50 Kg. Ganja was recovered and from another vehicle Renault Scrola Car total 70 Kg. Ganja was recovered and in the Renault Scrola Car three persons were
present while in Maruti Suzuki Car applicant and co-accused Monti were present, therefore, from the possession of accused persons including applicant total 120 Kg. Ganja was recovered.

From the perusal of recovery memo it further reflects that after opening all the ten packets of alleged Ganja, the Ganja was homogeneously mixed and thereafter 500 gm. was taken as sample and similar procedure was adopted from the recovered Ganja alleged to have been recovered from the Renault Car, therefore, it appears that the sample was not taken from each packets, therefore, it appears that Standing Order No. 1 of 1988 dated 15.03.1988 and 1 of 1989 dated 13.06.1989 have not been
properly complied with.

In case of Wali Hassan (supra) the co-ordinate Bench of this Court after discussing the matter in detail observed that it is mandatory to draw sample according to Standing Order No. 1
of 1989 dated 13.06.1989 and after considering the fact that there was violation of Standing Order, bail was granted.

Further, similarly placed co-accused Monti has already been released on bail by the co-ordinate Bench of this Court, who was also sitting along with applicant in Maruti Suzuki, therefore, in view of the observation made in Wali Hassan
(supra) and considering the fact that similarly placed co accused Monti has already been released on bail by the coordinate Bench of this Court and applicant is in jail since 17.09.2022, in view of this Court, it is a fit case to release the applicant on bail.

In the light of discussions made above, without expressing any opinion on the merits of the case, the instant bail application is allowed. Let the applicant – Afzal be released on bail in the aforesaid
case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted.
(ii) The applicant shall not directly or indirectly, make 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 any police officer or tamper with the evidence (iii) The applicant shall not indulge in any criminal and antisocial activity.

In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.