The Allahabad High Court has granted conditional bail to a man arrested with 526 kg ganja and ordered his release.
A single-judge bench of Justice Saurabh Lavania passed this order while hearing a Criminal Misc Bail Application filed by Omprakash Jhaba.
The counsel for the applicant has stated that as per the story of the prosecution, 26 bags of ganja were recovered from the vehicle and being the driver of the vehicle, the applicant has been implicated in the case. The total quantity of the ganja recovered from the possession of the applicant comes to 526.2 kg.
He further stated that the bags which were recovered, as stated by the prosecution, were numbered as 1 to 26. From bag number 1 to 25, neither was any sample taken nor was it sent to the Forensic Scientific Laboratory for chemical analysis. From bag number 26, 15.3 kg ganja was recovered. The same was in small packets.
As per the prosecution story, only 500 grams was sent to the laboratory for analysis, to prove the case of the prosecution that the concerned bags contain ganja.
He also stated that as per the settled view, the ganja which has been recovered, as stated by the prosecution, from bag number 1 to 25 and remaining quantity of bag number 26 cannot be taken note of by the prosecution in absence of any scientific report in this regard.
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The counsel for the applicant said that as per the Circular issued by the Ministry of Finance, Government of India, as also the relevant law on the issue, if the large quantity is recovered by the prosecution, then the sample for the forensic analysis has to be sent from all the bags concerned which were recovered.
In this case, as only from bag number 26, only 500 grams ganja as sample was sent for analysis as such only this quantity from bag number 26 can be taken note if report comes otherwise/against the applicant. This quantity is much below the commercial quantity provided under the Act of 1985.
The counsel for the applicant further said that there is no independent witness to support the story of the prosecution.
“In fact, this case is based upon the statement of the accused which could not be taken note of by the prosecution as observed in the case of Tofan Singh vs. The State of Tamil Nadu reported in (2021) 4 SCC 1. On the submission based upon the fact that only 500 grams ganja was sent for the chemical analysis and in this view of the matter, the ganja alleged to have been recovered from bag number 1 to 25 and remaining quantity of ganja of bag number 26 cannot be taken note of by the prosecution,”
-the Court noted.
Based upon the aforesaid judgments, the counsel for the applicant reiterated that in the case, only 500 grams from bag number 26 can be taken note of and as such, the applicant is entitled to be released on bail.
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Additional Government Advocate has opposed the prayer for bail and submitted that as per the FSL Report, bag number 26 contains ganja. However he could not dispute that from bag number 26, only 500 grams of ganja was sent for chemical analysis.
In response to the arguments advanced by counsel for the State, the petitioner’s counsel stated that as per the story of the prosecution itself, the bags were containing small packets and therefrom it appears that only one packet of 500 grams ganja was sent for chemical analysis and in view of the judgments relied upon, only this quantity can be taken note of and this quantity is much below than the commercial quantity provided under the statute itself.
It is next submitted that there is no possibility of tampering of any evidence. In such circumstances, the applicant is entitled for bail.
It is also submitted that the applicant will never misuse the liberty of bail and shall fully cooperate in the investigation.
“Considering the rival submissions of counsel for parties, material available on record, as well as totality of facts and circumstances including the admitted fact that only 500 grams ganja from bag number 26 was sent for chemical analysis as also judgments referred above and also keeping in mind the ratio of the Apex Court’s judgment in the case of Union of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798, larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof and without expressing any opinion on the merit of the case, I am of the view that the applicant is entitled to be released on bail,”
-the Court observed.
The Court ordered that,
Let applicant- Omprakash Jhaba be released on bail in the Case on his furnishing personal bond and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following conditions:-
(1) Applicants will not try to influence the witnesses or tamper with the evidence of the case or otherwise misuse the liberty of bail.
(2) Applicant will fully cooperate in expeditious disposal of the case and shall not seek any adjournment on the dates fixed for evidence when witnesses are present in the Court.
(3) Applicant shall remain present, in person, before the trial court on the dates fixed for (a) opening of the case, (b) framing of charge; and (c) recording of statement under Section 313 CrPC.
(4) Any violation of above conditions will be treated as misuse of bail and Court below will be at liberty to pass appropriate order in the matter regarding cancellation of bail.