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Allahabad HC allows second bail application of man accused under NDPS Act provisions

This is the second bail application on behalf of the applicant involved under Sections 8/21/29 N.D.P.S. Act, Police Station N.C.B., District Lucknow. The first bail application of the applicant was rejected by the Court order dated May 17, 2018.

The Allahabad High Court has recently allowed the second bail application of an accused lodged in jail under the Narcotic Drugs and Psychotropic Substances Act.

A Single Bench of Justice Om Prakash‐VII passed this order while hearing a Criminal Misc Bail Application filed by Anil Kumar Mishra.

This is the second bail application on behalf of the applicant involved under Sections 8/21/29 N.D.P.S. Act, Police Station N.C.B., District Lucknow. The first bail application of the applicant was rejected by the Court order dated May 17, 2018.

Senior Advocate Daya Shanker Mishra submitted that although this is the second bail application on behalf of the applicant, in similar circumstances, the third bail application of co-accused Rakesh Singh has been allowed by another Bench of the Court  order dated February 22, 2021.

It is next submitted that nothing has been recovered from the possession of the applicant. If entire prosecution case is taken into consideration, then also the applicant was sitting in the vehicle concerned only. Recovery is shown from the possession of the co-accused. Statement of the accused recorded under section 67 of the NDPS Act can also not be taken into consideration against the applicant, as has been held by  Supreme Court in case of Toofan Singh Versus State of Tamil Nadu, 2020 SCC Online SC 882.

It is further argued that on the basis of law laid down in Toofan Singh (supra) case, co-accused Rakesh Singh has been allowed on bail. Similar question arose before the Court said appeals were allowed acquitting the accused persons relying on the law laid down in Toofan Singh (supra) case.

Next submission of Counsel is that role assigned to the applicant is not distinguishable with the role of co-accused Rakesh Singh, who has already been enlarged on bail.

It is further submitted that although, in this case, there are two accused of similar name (Rakesh Singh), but there is only evidence against the applicant in the form of statement under Section 67 NDPS Act. Next submission is that call details are also not sufficient to connect the applicant with the matter. Mandatory provisions provided under the Act for search and seizure have also not been followed in strict sense. Conscious possessions of the recovered amount can also not be presumed against the applicant, as amount said to have been recovered in the matter was recovered from the possession of co-accused.

Thus, referring to supplementary affidavit and rejoinder affidavit as well as counter affidavit, it is further argued that no prima facie case is made out against the applicant. Search and seizure was made at another place from the place of incident.

This fact also shows that mandatory provisions provided under the Act for search and seizure have not been followed. Counsel has also referred to the provisions of Sections 52-A and 55 of the Act and further argued that applicant is also entitled to be released on bail.

Ashish Pandey, Counsel appearing for the N.C.B. submitted that there are sufficient evidence against the applicant to connect him with this matter. There is no legal mandate to make search and seizure on the place of occurrence itself. Applicant cannot get any help from the law laid down by the Apex Court in Tofan Singh (supra) case, as there is recovery of huge amount from the possession of the co-accused. Accused applicant was also present on the spot for receiving the contraband. Conscious possession of the applicant shall be presumed in the matter. All the circumstances shown by the investigating agency clearly demonstrate that applicant was involved in the matter.

Since prima facie case is made out, therefore, second bail application moved by the applicant is not liable to be allowed. There is long criminal history of the applicant. Looking to this fact also, second bail applicant cannot be allowed.

In reply,  Mishra, Counsel appearing for the applicant further argued that if there is no evidence against the applicant to connect him with the present offence, nothing has been recovered from his possession, simply on the ground of criminal history the applicant cannot be detained in jail. To substantiate his argument, Counsel has placed reliance on the judgment of the  Supreme Court in the case of Prabhakar Tewari Versus State of U.P. and others.

The Court opined that, the rival submissions advanced by Counsel for the parties and going through the entire record and also the law laid down by the Supreme Court in Toofan Singh (supra) case as well as evidence available against the applicant in this matter, the Court is of the opinion that a new ground for bail is made out and the applicant may be enlarged on bail.

Also Read: Supreme Court issues notice on plea of 13 juvenile prisoners seeking their release since they were juvenile when offence was committed

Therefore, the Court allowed the bail application.

The Court ordered that, “Let the applicant Anil Kumar Mishra involved under section 8/21/29 N.D.P.S. Act, Police Station N.C.B., District Lucknow be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions”.

1. The applicant will not tamper with the evidence during the trial.

2. The applicant will not pressurize/ intimidate the prosecution witness.

3. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

4. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

5. The applicant shall not directly or indirectly make any 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 or to any police officer or tamper with the evidence.

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