The Allahabad High Court has allowed the bail application saying that 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 place 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.
A Single Bench of Justice Subhash Vidyarthi passed this order while hearing a Criminal Misc Bail Application filed by Ahsan Ahmad.
The application has been filed seeking release of the applicant on bail in Case under Sections 8/22 Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station GRP Junction, District Bareilly.
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 FIR as ‘130’, without mentioning the unit of weight.
It is alleged that 150 grams of Alprazolam was recovered from the co-accused Manoj Kumar.
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.
The applicant’s criminal history has been explained in the affidavit, as per which he is involved in three cases. In one case bearing Case 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.
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.
The Court noted that, 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.
The Court said that 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.
The Court further said that 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.
“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”, the Court observed while allowing the bail application.
The Court ordered that,
Let the applicant Ahsan Ahmad be released on bail in Case under Sections 8/22 Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station GRP 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.
In case of breach of any of the above conditions, the prosecution shall be at liberty to move an application before this Court seeking cancellation of the bail.