Allahabad High Court
Shivam Kumar Singh vs Central Bureau Narcotic on 15 April, 2025
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:55253
Reserved On:- 08.04.2025
Delivered On:- 15.04.2025
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6692 of 2024
Applicant :- Shivam Kumar Singh
Opposite Party :- Central Bureau Narcotic
Counsel for Applicant :- Chandra Shekhar Pandey,Hari Om Gupta
Counsel for Opposite Party :- Krishna Agarawal
Hon'ble Siddharth, J.
1. Heard Sri Hari Om Gupta, learned counsel for the applicant and Sri Krishna Agarawal, learned counsel for the opposite party.
2. The instant bail application has been filed on behalf of the applicant, Shivam Kumar Singh, with a prayer to release him on bail in Case Crime No. Nil of 2022, under Sections- 8/21 N.D.P.S. Act, Police Station- C.N.B., Ghazipur, District- Varanasi, pendency of trial.
3. This is second bail application of the applicant.
4. The first bail application of the applicant was rejected on 29.01.2024 for want of prosecution.
5. There are allegations against the applicant that on prior information a team was constituted by D.R.I and thereafter recovery of 600 gm of heroine was made from the applicant in the presence of public witnesses.
6. Learned counsel for the applicant submits that the applicant was falsely implicated in this case. Memo of recovery was prepared on the spot but the provision of Section 50 of N.D.P.S. Act were not complied.
7. Learned counsel for the applicant further submits that sample of the seized heroine S1 and S2 were prepared on 14.03.2022 when the recovery memo was prepared. Samples were not drawn before the Magistrate. The inventory and other documents were produced before the Additional Sessions Judge on 15.03.2022. In paragraph 10 of the complaint, the same samples have been shown in the inventory annexed with the complaint filed by counsel for the opposite party. Even in the complaint, there is no averment that any Gazetted Officer or hesitate was present at the time of search. Therefore, there is clear violation of Section 52-A(2)(3)(4) of N.D.P.S. Act also. In the supplementary counter affidavit filed on behalf of opposite party, it has no where been mentioned that Magistrate was present at the time of search preparation of recovery memo and drawing of the samples.
8. In rebuttal in view the counsel for the opposite party has relied upon the judgment of the Apex Court in the case of Narcotics Control Bureau vs. Kashif, 2024 0 Supreme(SC) 1264 and has submitted that where offences are punishable with minimum sentence of 10 years accused shall generally not been released on bail. Any lapse or delay in compliance of Section 52-A neither vitiates the trial nor entitles accused to be released on bail.
9. After hearing the rival submissions, this court finds that it is not a case of applicant that there was no lapse or delay in compliance of Section 52-A rather his argument is that provision of Sections 50, 52-A(2)(3) and (4).
10. Counsel for the applicant has relied upon the judgment of another Bench of the Apex Court in the case of Yusuf @ Asif vs. State quoted in 2023 LawSuit(SC) 1020 and has placed before this court in paragraph nos. 9 to 17 of the aforesaid judgment which are quoted hereinbelow :-
“9. Learned counsel for the respondent on behalf of the State submitted that the search and seizure was based upon the prior information received by the Intelligence Officer of NCB who has been examined as PW1. The accused persons were disclosed the identity of the officers and after obtaining their consent in writing, the search was carried out in the presence of Superintendent of Police, NCB (PW8) who was a gazetted officer. After seizure, two samples from each packet were drawn and packed separately and were sealed. The NCB seal No.12 was affixed to it and the correct seal number was mentioned in the Mahazar and all other documents except in the godown receipt whereby inadvertently seal No.11 was mentioned. The Officers involved in the search, seizure and arrest operation had duly submitted their report as referred to under Section 57 of the NDPS Act.
10. In order to test the above submissions, it would be relevant to refer to the provisions of Section 52A (2), (3) and (4) of the NDPS Act. The aforesaid provisions provide for the procedure and manner of seizing, preparing the inventory of the seized material, forwarding the seized material and getting inventory certified by the Magistrate concerned. It is further provided that the inventory or the photographs of the seized substance and any list of the samples in connection thereof on being cer tified by the Magistrate shall be recognized as the primary evi dence in connection with the offences alleged under the NDPS Act.
11. For the sake of convenience, relevant subsections of Section 52A of the NDPS Act are reproduced hereinbelow:
“52A. Disposal of seized narcotic drugs and psychotropic substances.
(1) ……..
(2) Where any [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officerincharge of the nearest police station or to the officer empowered under section 53, the officer referred to in subsection (1) shall prepare an inventory of such [narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in subsection (1) may consider relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of [such drugs or substances or conveyances] and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.
(3) Where an application is made under sub section (2), the Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence.”
12. A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub-section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.
13. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under subsections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of subsection (2) of Section 52A of the NDPS Act.
14. It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn.
15. In Mohanlal’s3 case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone 3 Union of India vs Mohanlal and Anr (2016) 3 SCC 379 would constitute primary evidence for the purposes of the trial.
16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated.
17. Accordingly, we are of the opinion that the failure of the concerned authorities to lead primary evidence vitiates the conviction and as such in our opinion, the conviction of the appellant deserves to be set aside. The impugned judgment and order of the High Court as well as the trial court convicting the appellant and sentencing him to rigorous imprisonment of 10 years with fine of Rs.1 lakh and in default of payment of fine to undergo further imprisonment of one year is hereby set aside.”
11. After hearing the rival submissions, this court finds that in the present case neither search was made nor samples were drawn in the presence of Magistrate nor the list thereof was certified by the Magistrate. Therefore, no primary evidence were collected for proceeding with the trial against the applicant. In the counter affidavit and supplementary counter affidavit, it has no where been stated that the inventory was prepared and duly certified by the Magistrate. The applicant is in jail since 15.03.2022 and trial has not been concluded as yet.-*
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.
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 the applicant involved in the aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that :-
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in Court. In case of default of this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.
(iv) In case the applicant misuses the liberty of bail during trial 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.
(v) 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 absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of 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, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Order Date :- 15.04.2025
Rohit