The Allahabad High Court has granted bail to an accused under the Narcotic Drugs and Psychotropic Substances Act since there was no independent witness of the said recovery.
A single-judge bench of Justice Subhash Vidyarthi passed this order while hearing a Criminal Misc Bail Application filed by Aditya Kumar.
The application has been filed for release of the applicant on bail in NCB Crime under Section 8(C)/21/29 of Narcotic Drugs and Psychotropic Substances Act, P.S -NCB Lucknow.
The search, seizure-cum- recovery memo dated 04-07-2021 states that an information was received in the NCB office at Lucknow on 03- 07-2021 at 21:30 hours that a person was carrying Heroin in Coach No 9 of Train from Gaya, Bihar to Bareilly, UP and the train would reach Bareilly junction on 04-07-2021 between 06:00 hours to 07:00 hours. In furtherance of the aforesaid information, a team of NCB officers consisting of Intelligence Officer Mohd Farooq, Supervision Assistant Vivek Kumar, Hawaldar Hridesh Kumar and Driver Brijesh Kumar was constituted.
The team assembled in its office at Lucknow and reached Bareilly junction on 04-07-2021 at about 05:00 hours. No person agreed to become a witness to the proposed seizure proceedings. The Inspector, Railway Protection Force was requested to provide independent witnesses, who deputed two constables of RPF to act as witnesses.
When the train reached Bareilly junction, the NCB team apprehended the applicant and from a bag near him, about 300 gms brown coloured narcotic powder kept in a white transparent polythene was recovered. However, in personal search of the applicant, no objectionable substance was recovered. Upon testing the narcotic substance with a drug detection kit, it was found to be heroin. The NCB team conducted a repeat test with the kit and in that also, the substance was found to be heroin.
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It is alleged that the applicant also said that the substance was heroin. Its gross weight along with the double white transparent polythene in which it was packed, was found to be 391 gms.
The seizure memo contains a narration that the seizure proceedings commenced on 04-07-2021 at 07:45 hours and continued till 12:20 hours, the seizure memo consisting of four pages was prepared, read over to the applicant and it was signed by the Intelligence Officer, NCB, Lucknow, the Inspector RPF, the witnesses and the applicant.
The applicant filed an application for being released on bail before the Additional Sessions Judge/Special Judge, NCB, Bareilly, which was rejected by means of an order dated 04-09-2021 on the ground that commercial quantity of heroin was recovered from his possession in presence of the witnesses.
In the affidavit in support of the bail application, it has been stated that the applicant is innocent and he has been falsely implicated in the case and that nothing was recovered from him. It has also been stated in the affidavit that the applicant does not have any criminal history.
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The NCB counter-affidavit stated the substance found in the bag of the applicant was tested with the help of the DD Kit and as per the test report the substance was heroin. Its net weight was found to be 358 gms and gross weight was 391 gms and the statement of the applicant was recorded and he confessed that he was carrying heroin to be delivered to a person as per the instruction of his cousin Manish Kumar.
A rejoinder affidavit and a supplementary rejoinder affidavit have been filed on behalf of the applicant and a copy of the test report dated 09-11-2021 issued by the Central Revenues Control Laboratory, Hillside Road, Pusa, New Delhi, mentions that the sample did not answer positive test for heroin (Diacetylmorphine); however, the sample under reference answers positive test for morphine.
Daya Shankar Mishra, the Senior Advocate, appearing for the applicant, has submitted that the conduct of the NCB officers in the case raises suspicion against the veracity of their allegations.
He further submitted that as per the averments made in the recovery memo itself, the officers of NCB had received an information at Lucknow that the applicant was carrying heroin from Gaya, Bihar to Bareilly through train, which passes through Lucknow and their conduct in not apprehending the applicant at Lucknow rather the entire team travelled the whole night from Lucknow to Bareilly to apprehend the applicant at Bareilly, is not a natural course of conduct and it raises doubts against their story.
He also further submitted that although the alleged search and seizure was conducted at a Railway Station, which is a public place, filled with independent persons, there is no independent witness of the alleged recovery. The constables of Railway Police Force, who witnessed the alleged recovery, search and seizure, cannot be said to be independent witnesses.
Counsel for the applicant said that the test memo mentions the weight of the samples to be 5 gms each whereas the test report mentions gross weight of sample received to be 8.4 gms and the gross weight of remnant returned with plastic pouch to be 6.5 gms and this discrepancy in the weights has not been explained, which too makes the prosecution case doubtful.
Per contra, Ashish Pandey, the counsel for the NCB, submitted that the search was conducted in the presence of a Gazetted Officer. He has further submitted that the difference in test results of the DD Kit and that of the Government Laboratory are insignificant because Heroin and Morphine, both are narcotic substances and irrespective of the fact whether the substances being found with the applicant was Heroin or Morphine, he would be liable to be prosecuted under the NDPS Act.
Pandey has further submitted that the search has been conducted in presence of a Gazetted Officer and, therefore, there is no reasonable ground for doubting the genuineness of the search and seizure.
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Analyzing the facts of the case for the purpose of deciding the applicants claim for bail in light of the aforesaid law, the Court found that the following facts to be relevant at the stage: –
(i) Although the search and seizure was conducted at Bareilly Railway Station, there is no independent witness of the alleged recovery.
(ii) The constables of Railway Police Force cannot be said to be independent witnesses.
(iii) Although it is mentioned in the recovery memo that the search was conducted in presence of a Gazetted Officer Harjeet Singh ‘ADEN / BE’, the recovery memo does not bear signatures of the Gazetted Officer.
(iv) The recovery memo claims that in test and re-test of the substances conducted by the DD kit, both times it was found to be Heroin.
(v) The Intelligence Officer, NCB Zonal Unit Lucknow, has stated on oath that the sample was tested by the Government Laboratory and the report states that the samples under reference answered positive test for Heroin. However, a copy of the said test report has not been filed by the NCB.
(vi) The test report filed by the applicant categorically states that the substance was not found to be Heroin but it was Morphine.
(vii) Heroin and Morphine are different and distinct substances. Heroine ((Diacetylmorphine)) is mentioned at Serial No. 56 of the Notification dated 16-07-1996 specifying small quantity and commercial quantity issued under Section 2 (vii) (a) and 2 (xxiii) (a) of the Act and Morphine is mentioned at Serial No. 77 thereof.
“The aforesaid facts raise doubts against the prosecution case and it gives rise to a reasonable ground for prima facie believing at this stage that the applicant may not be held guilty of the alleged offences.
Moreover, the applicant has no criminal history and, therefore, there is no ground to believe that in case the applicant is released on bail, he would again indulge in committing similar offences.
All the witnesses in the case are officers and officials of Narcotic Control Bureau and personnel belonging to Railway Protection Force, therefore, there appears to be no reasonable apprehension that in case the applicant is released on bail, he would influence the witnesses.
No other material has been placed by the respondent-Narcotic Control Bureau, which may indicate that the applicant is not entitled to be released on bail.
Keeping in view the aforesaid facts and without making any observations on merits of the case, I am of the view that the applicant is entitled to be released on bail pending conclusion of the trial,” the Court observed while allowing the bail application.
The Court ordered,
Let the applicant Aditya Kumar, be released on bail in NCB Crime under Section 8(C)/21/29 of Narcotic Drugs and Psychotropic Substances Act, P.S- NCB Lucknow, on his furnishing a personal bond and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to 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 dates 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 the Court seeking cancellation of bail.
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