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2022 DIGILAW 1995 (ALL)

Ahsan Ahmad v. State of U. P.

2022-12-19

SUBHASH VIDYARTHI

body2022
JUDGMENT : Subhash Vidyarthi J. 1. Heard Sri Ahmad Ali Siddiqui, the learned counsel for the applicant, Sri Shashi Shekhar Tiwari, the learned Additional Government Advocate and perused the record. 2. The instant application has been filed seeking release of the applicant on bail in Case Crime No. 10 of 2022, under Sections 8/22 Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station G,R.P. Junction, District Bareilly. 3. The aforesaid case has been registered on the basis of a first information report lodged by an Inspector In-charge on 27.02.2022 alleging that on 26.02.2022, at about 19:09 hours, when he was involved in routine patrolling along with some other police personnel, he received an information from a Mukhbir that three persons were sitting on the station with an intention to sell stolen mobile phones and other stolen articles. Upon the aforesaid information, the police apprehended three persons, including the applicant and it is alleged that both the accused persons stated that they were having alprazolam powder. Thereafter a Deputy Superintendent of Police – Railway, Moradabad was called through a call on his mobile phone and he came on the spot and he conducted the personal search of the accused persons, upon which, a powder was recovered from the pocket of the lower worn by the applicant during his personal search and the weight of the substance recovered is mentioned in the F.I.R. as ‘130’, without mentioning the unit of weight. It is alleged that 150 grams Alprazolam was recovered from the co-accused Manoj Kumar. 4. It has been averred in the affidavit filed in support of the bail application that the applicant is an innocent person, he has been falsely implicated in the case and he is in jail since 26.02.2022. It has also been stated in the affidavit that there is no possibility of the applicant tampering with any evidence and in such circumstances, he is entitled to be released on bail. It is also stated in the affidavit that the applicant will not misuse the liberty of bail and he will fully cooperate in the investigation. 5. The applicant's criminal history has been explained in paragraph-14 of the affidavit, as per which he is involved in three cases. It is also stated in the affidavit that the applicant will not misuse the liberty of bail and he will fully cooperate in the investigation. 5. The applicant's criminal history has been explained in paragraph-14 of the affidavit, as per which he is involved in three cases. In one case bearing Case Crime No. 07 of 2022, under Sections 120-B, 328, 380, 411 IPC and 66D Information Technology Act, the applicant has been granted bail by means of an order dated 21.09.2022 passed by this Court in Criminal Misc. Bail Application No. 39410 of 2022. 6. The State has filed a counter affidavit opposing the prayer for grant of bail to the applicant and it has been stated that the Forensic Science Laboratory, Moradabad has reported that upon examination, the substance has been found to be Alprazolam. 7. Section 50 (1) of the N.D.P.S. Act provides as follows: - “50. Conditions under which search of persons shall be conducted.—(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the Magistrate referred to in sub-section (1). (3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest gazetted officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest gazetted officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.” 8. Section 50 of the Act provides that before conducting search of a person, the officer authorised under Section 42 shall, if such person so requires, take such person to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. The Section does not contemplate any Gazetted Officer or any Magistrate being called to the accused person. 9. In Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 , the Hon’ble Supreme Court held that: - “29. In view of the foregoing discussion, we are of the firm opinion that the object with which the 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 insofar 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 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. 30. As observed in Presidential Poll, In re: (1974) 2 SCC 33 ) “13. … It is the duty of the courts to get at the real intention of the legislature by carefully attending [to] the whole scope of the provision to be construed. 30. As observed in Presidential Poll, In re: (1974) 2 SCC 33 ) “13. … It is the duty of the courts to get at the real intention of the legislature by carefully attending [to] the whole scope of the provision to be construed. ‘The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole.’ ” * * * 32. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well. 10. In State of Rajasthan v. Parmanand, (2014) 5 SCC 345 , the Hon’ble Supreme Court, the prosecution case was that a Sub-Inspector had informed the accused persons that they could be searched before the nearest Magistrate or before the nearest gazetted officer or before a Superintendent, who was a part of the raiding party and the accused persons informed the officers that they would like to be searched before the Superintendent. The Supreme Court held that: - “This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to the nearest Magistrate or the nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW 10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW 5 J. S. Negi, the Superintendent, who was part of the raiding party. PW 5 J. S. Negi cannot be called an independent officer...” 11. Therefore, it was improper for PW 10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW 5 J. S. Negi, the Superintendent, who was part of the raiding party. PW 5 J. S. Negi cannot be called an independent officer...” 11. The Deputy Superintendent of Police Railway cannot be treated to be an independent officer and, therefore, the search conducted in his presence after calling him to the pace where the accused persons had been apprehended, does not appear to be in accordance with the statutory mandate laid down under Section 50 of the Act. 12. Moreover, Section 52-A (2) and (3) of the NDPS Act, which provide that where any psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in sub-section (1) shall prepare an inventory of such substance containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the substance or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the substance in any proceedings under this Act and make an application, to any Magistrate for the purpose of— (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. 13. In exercise of the powers conferred by Section 52 A (1) of the Act, the Government of India, Ministry of Finance (Department of Revenue) has issued a Standing Order No. 1/89 dated 13th June, 1989, laying down procedure for collection of samples etc. Section II of the Standing Order No. 1/89 reads as under:— “Section II General Procedure for Sampling, Storage, etc. 2.1. Sampling and classification, etc. of drugs. All drugs shall be properly classified carefully weighed and sampled on the spot of seizure. 2.2. Drawal of samples. All the packages/containers shall be serialy numbered and kept in lots for sampling. Section II of the Standing Order No. 1/89 reads as under:— “Section II General Procedure for Sampling, Storage, etc. 2.1. Sampling and classification, etc. of drugs. All drugs shall be properly classified carefully weighed and sampled on the spot of seizure. 2.2. Drawal of samples. All the packages/containers shall be serialy numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses Panchas and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama drawn on the spot. 2.3. Quantity to be drawn for the sampling.— The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the cases of opium, ganja and charas (hashish) where a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn. * * * 3.1. Preparation of inventory.- After sampling, detailed intentory of such packages/containers shall be prepared for being enclosed to the panchnama. Original wrappers shall also be preserved for evidentiary purposes. 14. In Union of India v. Mohanlal, (2016) 3 SCC 379 , the Hon’ble Supreme Court was pleased to issue the following directions to ensure compliance of the statutory provisions contained in Section 52-A of the Act: - “31. To sum up we direct as under: 31.1. No sooner the seizure of any narcotic drugs and psychotropic and controlled substances and conveyances is effected, the same shall be forwarded to the officer in charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52-A(2) of the Act, which shall be allowed by the Magistrate as soon as may be required under sub-section (3) of Section 52-A, as discussed by us in the body of this judgment under the heading “seizure and sampling”. The sampling shall be done under the supervision of the Magistrate as discussed in Paras 15 to 19 of this order. ---”. The sampling shall be done under the supervision of the Magistrate as discussed in Paras 15 to 19 of this order. ---”. 15. There is nothing on record to indicate that any such application, as is mentioned in Sub-section (2) was made to any Magistrate and the application was allowed as required by Sub-section (3) of Section 52 A. 16. Without making any observation which may affect the merits of the case, this Court is of the view that the aforesaid facts are sufficient for establishing prima facie innocence of the applicant for making out a case for enlargement of the applicant on bail. Further, there is nothing on record, which may give rise to a reasonable apprehension that in case the applicant is released on bail, he will indulge into commission of similar offences. 17. In light of the preceding discussion and without making any observation on the merits of the case, the instant bail application is allowed. 18. Let the applicant Ahsan Ahmad be released on bail in Case Crime No. 10 of 2022, under Sections 8/22 Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station G,R.P. Junction, District Bareilly on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned, subject to the following conditions:- (i) The applicant will not tamper with the evidence during the trial. (ii) The applicant will not influence any witness. (iii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted. (iv) 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 to any police officer or tamper with the evidence. 19. In case of breach of any of the above condition, the prosecution shall be at liberty to move an application before this Court seeking cancellation of the bail.