Monday, August 15, 2022

Allahabad High Court grants bail to man held with 103 kg ganja

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The Allahabad High Court granted bail to a man booked under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

A single-judge bench of Justice Krishan Pahal passed this order while hearing a Criminal Misc Bail Application filed by Om Prakash Verma.

The applicant sought bail in Case under Sections 8/20 of The Narcotic Drugs And Psychotropic Substances Act, 1985, Police Station- Utraula, District Balrampur, during the pendency of trial.

According to the prosecution, 103.290 kg of ganja and 38 packets of cigarette rolling paper was recovered from an unnumbered Tata Tiago along with one CMP, .303 bore, one live cartridge of .303 bore from the possession of two co-accused persons, Verma and Ram Prakash Verma. Also Rs 340 in cash was recovered from the applicant and Rs 25,000 cash was recovered from the Ram Prakash Verma and two accused persons are stated to have run away from the scene.

The counsel for the applicant has argued that in all the said contraband was recovered from 19 packets and one polythene amounting to a total 103.290 kg and only one sample has been taken from the said contraband. This is a clear violation of Clause 2.4 of the Standing Order.

The counsel for the applicant has further argued that the said sample has been sent for testing after a delay of 20 days, which is also clear violation of the said Standing Order, as it is provided in it that the contraband should be sent for chemical analysis within a period of 72 hours. The said delay has categorically prejudiced the accused and there is every possibility of interpolation and adulteration in the said sample.

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The counsel for the applicant submitted that the general procedure for sampling provided in Standing Order dated 13.06.1989 has not been complied with by the opposite party.

The counsel further submitted that the above clauses of the standing order aforesaid clearly show that the police was required to draw a sample from each packet allegedly recovered with the help of field testing kit. The mixing of the material from all the packets and then drawing of representative samples is not provided in the Standing Order, as if such a course is adopted the sample would cease to be representative sample of the corresponding packet.

In the case, 19 packets and one polythene bag were recovered from the possession of the two accused and the procedure given in clause 2.4 of the Standing Order was strictly required to be followed since there were only 20 packets in all from which the sample was to be drawn. At this point of time, it cannot be ascertained whether all the 19 packets and one polythene bag (total 20 in all) contained the alleged contraband of ganja or not.

The counsel for the applicant said the applicant is absolutely innocent and has been falsely implicated in the present case with a view to cause unnecessary harassment and to victimize him. The applicant is languishing in jail since June 22, 2021. In case, the applicant is released on bail, he will not misuse the liberty of bail.

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The Additional Government Advocate opposed the bail application on the ground that the recovery of the contraband article is of commercial quantity.

“Considering the facts of the case and keeping in mind, the ratio of the Apex Court’s judgment in the case of Union of India vs Shiv Shankar Keshari (supra) 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,” the Court observed.

The Court ordered,

“Let the applicant Om Prakash Verma, who is involved in the aforementioned case 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 subject to following conditions. Further, before issuing the release order, the sureties are verified.

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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.

(ii) 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 IPC.

(iii) 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., may be issued and if 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 IPC.

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(iv) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) 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.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.”

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