The Allahabad High Court has allowed the bail application saying that it is settled law that there can be no parity in rejection of a bail application.
A Single Bench of Justice Subhash Vidyarthi passed this order while hearing a Criminal Misc Bail Application filed by Mohd Asageer.
The application has been filed seeking release of the applicant on bail in Case under Sections 8(c), 20(C), 28, 29 of Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station NCB Lucknow.
The recovery memo states that at 19:30 hours on 01.01.2020, information was received that a Truck was transporting 500.6 kg Ganja from Orissa to Moradabad, Uttar Pradesh and a team of officials of NCB and another team of STF started on 01.01.2020 at 21:15 hours from Lucknow and it reached Moradabad at about 04:00 a.m. on 02.01.2020.
It is alleged that besides some vehicles passing on the road, no person of the public was seen nearby. It was decided that independent witnesses be asked from the Police Station – Special Economic Zone and the Station House Officer called two persons namely Riyasat Hussain and Zakir Hussain, who agreed to witness the recovery. The team observed a Truck parked on the road side and at about 08:45 a.m a Car came and stopped about 100 meters away from the truck. Two suspicious persons got down the car and proceeded towards the truck while two other persons continued sitting in the car.
The truck driver also got down and he along with the persons, who had got down the car, started inspecting the truck. The NCB team apprehended all the three persons and it is stated in the recovery memo that the applicant, who was driving the truck, had informed that about 600 kg Ganja was kept in a secret cavity in the truck, which was being transported from Odisha to be delivered to Mohd Atikurrahman resident of Gorakhpur and Zafsar Ali resident of Sambhal and the other two persons also made similar statements.
Thereafter the truck was taken to the campus of the police post and it was searched there, the applicant opened a secret cavity and took out 296 packets, each of which contained about 2 kg Ganja. The packets were marked and packed in 25 sacks after taking out small quantities from each of the packets. All the samples taken out were mixed together and samples of 25 gm were drawn from each sack.
The applicant filed an application in the Court of Special Judge, NDPS Act/Additional Session Judge, Moradabad seeking his release on bail in the aforesaid case on the ground that the applicant had been arrested from the spot and 651.300 kg Ganja was recovered from the truck which was being driven by the applicant and that in his statement recorded under Section 67 of the NDPS Act, the applicant had confessed his complicity in the offence.
In the affidavit filed 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 he has no criminal history and he has a permanent residence, so there is no chance of his absconding.
The Narcotics Control Bureau has filed a counter affidavit, annexing therewith a copy of the complaint filed by it in the Court of the Session Judge, Moradabad, stating that the truck was being driven by the applicant and it was owned by Jafsar Ali, who had come down from the Car along with another co-accused Atiqur Rehman. The two other persons who were sitting in the car were Shiv Chand Sahni and Mubarik Khan.
On 02-02-2020, a notice under Section 67 of the Act was given to the applicant and he gave a confessional statement that he was transporting Ganja on the direction of the owner of the truck Jafsar Ali.
The applicant was arrested on 03-01-2020. Similarly, confessional statements of all the four co-accused persons were recorded under Section 67 of the NDPS Act and on 04-01-2020 all of them were produced before the Court along with the seized property and they were sent to judicial custody.
It has further been stated in the complaint that an analysis of C.D.R established contact between the accused persons and that the applicant was using a mobile, which was registered in the name of someone else and co-accused Atikur Rehman had made 86 calls on that number.
A rejoinder affidavit has been filed on behalf of the applicant denying that the substance was recovered upon the applicant’s pointing out and that he had made any voluntary confessional statement. It has been stated in the rejoinder affidavit that the applicant was merely the driver of the truck and he had no knowledge about the substance kept in a hidden cavity in the truck.
Satish Trivedi, Senior Counsel for the Applicant submitted that the procedure prescribed in Standing Order Ministry of Finance (Department of Revenue) for collection of samples has not been followed in the case. It is apparent from a perusal of the recovery memo that the samples of the seized substance were not taken at the spot where it was allegedly recovered. Representative samples were not drawn from each of the packets recovered.
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Ashish Pandey, the Counsel for NCB submitted that the bail applications of two co-accused persons, namely Shiv Chand Sahni and Ateeq-ur Rehman have been dismissed by means of orders dated 14-12-2020 and 09-11-2021 passed by the Court,
Analyzing the facts of the case for the purpose of deciding the applicant’s claim for bail in light of the law, the Court found the following facts to be relevant for deciding the application for grant of bail to the applicant: –
(i) The representative samples of the substance recovered from the truck were not drawn either at the spot of the recovery or in presence of the Magistrate;
(ii) It was not a chance recovery and it is not the case of NCB that the officers did not have the facility to prepare a seizure memo at the spot itself. The seizure was made in presence of witnesses and the facility for weighing the article and field testing kits were available with the search team and, therefore, there was no reasonable ground for preparation of the seizure memo at a later stage.
(iii) The samples were not drawn from each of the 296 packets containing the substance, but only three sample were drawn in duplicate from three lots in which the packets were re-arranged;
(iv) No material has been placed on record to indicate that the officer in charge of the police station or any other empowered officer has made an application to a Magistrate for the purpose of certifying the correctness of the inventory prepared, taking photographs of the substance in presence of the Magistrate, certifying such photographs as true or allowing to draw representative samples of the substance in the presence of the Magistrate and certifying the correctness of the list of samples and that the Magistrate has allowed the application. Therefore, at this stage, prima facie it appears that the procedure prescribed in Section 52 A of the Act has not been followed in the present case.
(v) The applicant was the driver of the truck and apart from the confessional statements of the applicant and the other accused persons, there is nothing to indicate that the applicant knew about the hidden cavity made in the body of the truck;
(vi) The confessional statement of the accused persons is not admissible in evidence in view of the law laid down by the Supreme Court in Tofan Singh (Supra);
(vii) Although it is alleged that several calls had been made from the mobile phone of co-accused Atiq-ur Rehman to the applicant, the mobile phone allegedly used by the applicant is in the name of some other person.
“The aforesaid facts raise doubts against the prosecution case and it give rise to a reasonable ground for prima facie satisfaction at this stage that the applicant may not be held guilty of the alleged offences.
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.
Moreover, nothing has been placed on record which may give rise to a reasonable apprehension that in case the applicant is released on bail, he would influence the witnesses.
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So far as the rejection of bail application of two of the other co accused persons is concerned, it is settled law that there can be no parity in rejection of a bail application. Moreover, the aforesaid points were not taken into consideration while deciding the bail applications of the co-accused persons.
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.
In view of the aforesaid discussion 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 that,
Let the applicant – Mohd Asageer, be released on bail in Case under Sections 8(c), 20(C), 28, 29 of Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station 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.