[ad_1]
Allahabad High Court
Guddu Yadav vs Union Of India on 21 April, 2025
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:58655 Reserved On:- 15.04.2025 Delivered On:- 21.04.2025 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34034 of 2024 Applicant :- Guddu Yadav Opposite Party :- Union of India Counsel for Applicant :- Piyush Patel,Pradeep Kumar,Rasmi Khilwani Counsel for Opposite Party :- Ashish Pandey Hon'ble Siddharth, J.
1. Heard Ms. Rasmi Khilwani, learned counsel for the applicant and Sri Ashish Pandey, learned counsel for the Opposite party -N.C.B., Lucknow.
2. This bail application has been preferred by the accused-applicant, Guddu Yadav, who is involved in Case Crime No. 08 of 2024, under Sections- 8(C)/20/23/25/29 of N.D.P.S. Act, Police Station- Sonauli, District- Maharajganj.
3. There are allegations against the applicant that on prior information a car was intercepted and on the driving seat one, Nabi Hasan, was found by team of N.C.B. On the back seat of the car two ladies and the applicant were found to be sitting. The driver admitted that in the secret place in his car he has hidden charas. From the back seat and seat rest of the back seat team got the packets of charas recovered. During search no recovery was made from the person of two ladies, the applicant and the driver of vehicle, Nabi Hasan. Total recovery of 71.400 kg charas was made packed in 249 packets. The six lots of 40 packets each were prepared and numbered.
4. Learned counsel for the applicant submits that applicant was only a passenger in the car who did not admitted presence of any contraband in his knowledge. It was the driver who confessed that he had hidden ganja in his car at secret place and he got the recovery made from the back seat and back seat rest.
5. Counsel for the applicant has further submitted that the applicant has been falsely implicated in this case. He has no criminal history to his credit and is languishing in jail since 22.02.2024.
6. Learned counsel for the applicant has submitted that by way of Notification dated 23 December, 2022, the Union Government has notified the enactment Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022. Chapter II of the aforesaid rules provide for Sampling of the contraband substance. Rule 10 categorically provides that:
10. Drawing the samples. –
(1) One sample, in duplicate, shall be drawn from each package and container seized.
(2) When the packages and containers seized together are of identical size and weight bearing identical marking and the contents of each package give identical results on colour test by the drugs identification kit, conclusively indicating that the packages are identical in all respects, the packages and containers may carefully be bunched in lots of not more than ten packages or containers, and for each such lot of packages and containers, one sample, in duplicate, shall be drawn: Provided that in the case of ganja, poppy straw and hashish (charas) it may be bunched in lots of not more than forty packages or containers.
(3) In case of drawing sample from a particular lot, it shall be ensured that representative sample in equal quantity is taken from each package or container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.
7. In the present case, procedure of sampling was not complied. There is violation of Sections 41,43, 52-A and 53 of N.D.P.S. Act. The inventory was neither prepared in the presence of a Magistrate nor has it been certified by him as mandated by the Hon’ble Apex Court in the case of Yusuf @ Asif Vs. State (AIR 2023 SC 5041). The applicant has no criminal history. He is in jail since 01.08.2024 and he undertakes that he will not misuse liberty, if granted.
8. Counsel for the N.C.B., Sri Ashish Pandey, has vehemently opposed the bail application and has submitted that the recovery of contraband was made from the car wherein the applicant and other co-accused were travelling. He has submitted that the applicant is a criminal minded person. He has submitted that conscious possession of contraband was fully established in this case and therefore the applicant has no right to claim bail. He has relied upon the judgment of the Apex Court in the case of Union of India vs. M.D. Nawaz Khan, 2021 LawSuit (SC) 546, in support of his contention.
9. The “reasonable grounds” mentioned in Section 37(1)(b)(ii) of N.D.P.S Act mean something more than prima facie ground. It implies substantial probable causes for believing that accused is not guilty of the offence charged and points to existence of such facts and circumstances which are sufficient to hold that accused is not guilty.
10. After hearing the rival contentions, this court finds that the applicant and two co-accused ladies were travelling were only passengers in the vehicle. They have admitted to the involvement in their confessional statements but it cannot be read against applicant at this stage. The conscious possession of contraband alleged against the applicant does not seems to be correct. The Apex Court in the case of Avtar Singh and Ors vs. State of Punjab, AIR 2002 SC 3343, has held as follows:-
“The word ‘possession’ no doubt has different shades of meaning and it is quite elastic in its connotation. Possession and ownership need not always go together but the minimum requisite element which has to be satisfied is custody or control over the goods. Can it be said, on the basis of the evidence available on record, that the three appellants one of whom was driving the vehicle and other two sitting on the bags, were having such custody or control? It is difficult to reach such conclusion beyond reasonable doubt. It transpires from evidence that the appellants were not the only occupants of the vehicle. One of the persons who was sitting in the cabin and another person sitting at the back of the truck made themselves scarce after seeing the police and the prosecution could not establish their identity. It is quite probable that one of them could be the custodian of goods whether or not he was the proprietor. The persons who were merely sitting on the bags, in the absence of proof of anything more, cannot be presumed to be in possession of the goods. For instance, if they are labourers engaged merely for loading and unloading purposes and there is nothing to show that the goods were at least in their temporary custody, conviction under Section 15 may not be warranted. At best, they may be abettors, but, there is no such charge here. True, their silence and failure to explain the circumstances in which they were traveling in the vehicle at the odd hours, is one strong circumstance that can be put against them. A case of drawing presumption under Section 114 of the Evidence Act could perhaps be made out then to prove the possession of the accused, but, the fact remains that in the course of examination under Section 313 Cr.P.C, not even a question was asked that they were the persons in possession of poppy husk placed in the vehicle. The only question put to them was that as per the prosecution evidence, they were sitting on the bags of poppy husk. Strangely enough, even the driver was questioned on the same lines. The object of examination under S.313, it is well known, is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against him. It is unfortunate that no question was asked about the possession of goods. Having regard to the charge of which appellants were accused, the failure to elicit their answer on such a crucial aspect as possession, is quite significant. In this state of things, it is not proper to raise a presumption under Section 114 of Evidence Act nor is it safe to conclude that the prosecution established beyond reasonable doubt that the appellants were in possession of poppy husk which was being carried by the vehicle. The High Court resorted to the presumption under Section 35 which relates to culpable state of mind, without considering the aspect of possession. The trial court invoked the presumption under S.54 of the Act without addressing itself to the question of possession. The approach of both the courts is erroneous in law. Both the courts rested their conclusion on the fact that the accused failed to give satisfactory explanation for travelling in the vehicle containing poppy husk at an odd hour. But, the other relevant aspects pointed out above were neither adverted to nor taken into account by the trial court and the High Court. Non-application of mind to the material factors has thus vitiated the judgment under appeal. Coming to the case of the third appellant who was driving the vehicle, there is one more infirmity in the prosecution case. He would have been charged alternatively for transporting the offensive goods without permit or authorization as required by law; but, such a charge was not laid. There was not even reference to Section 8 of the Act. The result is, he too goes scot free.”
11. In view of the above judgment of the Apex Court it cannot be concluded that the applicant was in conscious possession of the contraband, he was only sitting on the back seat of vehicle. He has no criminal history to his credit and the confession made by the applicant before team of N.C.B cannot be read against him.
12. However the Apex Court in the Case of Union of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798 has held that the court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. In this case prosecution case itself is in doubt due to non-adherence to sampling procedure, not to say of recording any finding regarding guilt of the applicant.
13. Considering the facts of the case and keeping in mind the arguments advanced on behalf of the parties, 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, the severity of punishment which conviction will entail, the character of the accused-applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/ State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail.
14. Let applicant be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions-
(i) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code;
(ii) In case, the applicant misuses the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the Court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iii) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.
15. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
16. Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Order Date :- 21.04.2025
Rohit
[ad_2]
Source link