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2020 DIGILAW 1400 (ALL)

Shahid Hussain v. State of U. P.

2020-12-01

SANJAY KUMAR PACHORI

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JUDGMENT : SANJAY KUMAR PACHORI, J. 1. Heard Sri. Rakesh Pati Tiwari, learned counsel for the applicant, learned A.G.A. for the State and perused the record. 2. This bail application has been preferred by the accused-applicant, Shahid Hussain who is involved in Case Crime No. 293 of 2020, under Section 8B/21 of N.D.P.S Act, Police Station-Bhojipura, District-Bareilly. 3. Recovery of 40 gms heroin/smack has been made from the applicant. Recovered contraband article is below commercial quantity. Seizure memo is without compliance of mandatory provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 in true letter and spirit, therefore, legal sanctity of the alleged recovery stands vitiated. It is further submitted that no report of FSL has been produced in the Court that the seized contraband is smack or not. The contraband has been seized from the possession of his person in absence of independent witness or public witness. Seizure memo dated 08.09.2020 shows that two other persons have also been implicated in the present case and F.I.R. against them have been lodged separately. The applicant is languishing in jail since 08.09.2020, having no criminal history to his credit. 4. Learned A.G.A. opposed the prayer for bail. 5. In Vijaysinh Chandubha Jadeja vs. State of Gujarat, (2011) 1 SCC 609 , the Constitution Bench of the Hon'ble Supreme Court considered the question whether compliance of Section 50 of the NDPS Act would be sufficient. The Court answered in the negative and held that the obligations of the authorized officer under Section 50(1) of the NDPS Act is mandatory and requires strict compliance. The relevant extract of the said decision is set out below:- “29. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.” 6. In Ashok Kumar Sharma vs. State of Rajasthan, (2013) 2 SCC 67 , Hon'ble Supreme Court considered a case where the authorized officer had merely informed the accused (appellant therein) that he can be searched before any Magistrate or Gazetted Officer, if he so wished. Hon'ble Supreme Court held that the same did not comply with the mandatory procedure of Section 50 of the NDPS Act and, thus, vitiated the entire proceedings. 7. This Court finds substance in the argument of learned counsel for the applicant that the Arresting Officer has not complied with the provisions of Section 50 and 51, as interpreted by the Hon'ble Supreme Court in a number of judgments. Merely asking a person whether he wants to be searched before a gazetted officer or Magistrate is not the sufficient compliance of Section 50 of NDPS Act. Even the factum of giving such option is being denied by the applicant. The provisions of the above two Sections are meant, basically, to protect an individual against the false implication by the Police. If this protection is sought to be denied by the Police then this is one of the reasons which can lead, and is leading, the Court in the present case, to come, to a prima facie, but reasonable satisfaction that the applicant is not involved in the crime alleged in the present case. 8. If this protection is sought to be denied by the Police then this is one of the reasons which can lead, and is leading, the Court in the present case, to come, to a prima facie, but reasonable satisfaction that the applicant is not involved in the crime alleged in the present case. 8. Keeping in mind the law laid down by the Apex Court in the case of Gudikanti Narasimhulu and Others vs. Public Prosecutor, High Court of Andhra Pradesh, AIR 1978 SC 429 , after perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence and larger mandate of the Article 21 of the Constitution of India, without expressing any opinion on the merits, let the applicant, Shahid Hussain involved in the aforesaid case, be released on bail on his executing a personal bond and two heavy sureties each out of whom one should be a family member in the like amount to the satisfaction of the court concerned on the following conditions:- (i) The applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever. (ii) The applicant will personally appear on each and every date fixed in the court below and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice. (iii) The applicant shall cooperate in the trial sincerely without seeking any adjournment. (iv) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail. (v) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad or certified copy issued from the Registry of the High Court, Allahabad. (vi) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. 9. It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail. 10. 9. It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail. 10. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.