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Allahabad High Court rejects bail to man held with 1025 kg ganja

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The Allahabad High Court has rejected the bail application of a man accused of possessing 1025 kg of ganja.

A single-judge Bench of Justice Shekhar Kumar Yadav passed this order while hearing a Criminal Misc Bail Application filed by Shankar Varik @ Vikram.

The bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant seeking enlargement on bail in Case under Section 8/20/29 of Narcotic Drugs and Psychotropic Substances Act at Police Station Challani-NCB Lucknow, District Jhansi.

The factual matrix of the case is that on May 27, 2020 at about 7 AM, upon information that four persons, namely, Sanjay Kumar Singh, Vinod Singh, Shankar Varik (applicant/accused) and Chhote Lal in two trucks are about to come from Tikamgarh towards Mauranipur at Khadiyan Crossing and they are carrying huge quantity of illegal ganja, the informant of NCB with his team along with necessary items (proper kits) for further action in accordance with provisions of NDPS Act, reached the spot at about 9 AM and started patrolling at Khandiyan Crossing.

It is alleged that in the evening at about 18.30 hrs, the officers of NCB saw both trucks, which were coming towards Khandiyan Crossing of Tikamgarh. The officers of NCB intercepted the Dumper and from the Cavity of Dumper, a huge amount of ganja weighing 1025 kg was recovered, which was kept in 25 plastic gunny bags and upon testing by DD Kit, the samples tested positive for ganja. The said dumper was driven by co-accused Vinod Singh and the applicant was sitting on the truck. The aforesaid search was conducted in presence of two independent witnesses, namely, Chandra Shekhar and Kuldeep and also in presence of a gazetted officer, namely, Dr. Pradeep Kumar Singh, C.O Mauranipur, Jhansi.

The Dumper was also seized under Section 60 of NDPS Act. A notice under section 67 of NDPS Act was served upon the accused persons and their statements were also recorded.

Sahai, Senior Counsel appearing for the applicant, submitted that the applicant has been falsely implicated in the case. During lockdown, the applicant went to Jhansi for his personal work and he did not get any vehicle to return back to his village at Chhattisgarh. The applicant was neither owner of the dumper nor driver of the dumper. The applicant was merely a passenger in the vehicle in question.

He has further submitted that the applicant has no knowledge about recovered contraband. The alleged dumper, from which the contraband has been recovered, does not belong to the applicant.

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Senior Counsel also submitted that neither any recovery has been made nor any recovery memo has been prepared on the spot. At the time of arrest, mandatory provision of Sections 42, 50, 52, 53, 57 of NDPS Act have not been complied with.

Senior Counsel said that nothing has been recovered from the possession of the applicant and the alleged recovery is false and fabricated. There is no independent eye witness of the alleged recovery, which has been shown.

Senior Counsel further said that there is no evidence on record which shows that applicant was in conscious possession or constructive possession of the recovered contraband. The applicant has no criminal history. The applicant has been in jail since May 29, 2020.

Additional Government Advocate for the State as well as Ashish Pandey, counsel for NCB, have opposed the prayer for bail and have submitted that the applicant was arrested on spot. The applicant and other co-accused persons were very much involved in interstate trafficking as they themselves have admitted in their voluntary statement under Section 67 of NDPS Act, which belie all statements.

He has further submitted that so far as compliance of Section 50 of NDPS Act is concerned, the accused persons were searched in the presence of Pradeep Kumar Singh, C.O Mauranipur, Jhansi, who is a gazetted officer, hence, Section 50 of NDPS Act has fully complied with. Recovery has also been made in presence of two independent witnesses, namely, Chandra Shekhar and Kuldeep.

He has further submitted that it is an admitted fact that the recovery of 1025 kg ganja, which is more than the commercial quantity, has been recovered from the dumper in question, hence, Section 37 of NDPS Act is attracted in the case, therefore, the bail application is liable to be rejected.

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The Court held that,

It is evident that on May 27, 2020 during the checking, the vehicle mentioned above, ganja weighing 1025 kilograms was recovered from the vehicle, which admittedly is more than the commercial quantity, as such, rigors of Section 37 of the NDPS Act are applicable in the case.

The counsel appearing for the applicant submitted that no public witness was taken by the police in the alleged recovery proceedings despite the alleged recovery was made on the Highway, therefore, this recovery cannot be presumed to be an impartial recovery.

According to the recovery memo, it is evident that the recovery was made at night and due to the pandemic prevalent at that time and seclusion no public witness could be secured. Apart from this, the law is well settled that the evidence of a public officer cannot be thrown only on the ground that he is a police officer.

The accusation in the case is with regard to the commercial quantity. Once the bail is opposed to a person accused of the enumerated offenses, in case, the Court proposes to grant bail to such a person, two conditions are to be mandatorily satisfied in addition to the normal requirements under the provisions of the Code of Criminal Procedure, 1973 or any other enactment, (i) the Court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offense.

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“In the light of the facts and circumstances of the case, it would be inappropriate to discuss the evidence in depth at this stage because it is likely to influence the trial of the accused. But, from the perusal of the evidence collected during investigation so far, prima facie, the involvement of the accused in the case cannot be ruled out. No reason is found to falsely implicate the applicant/accused. Therefore, there is no good ground to release the applicant-accused on bail at this stage. All the contentions raised by the senior counsel for the accused pertain to the merits of the case and the same cannot be considered while considering application for grant of bail. The court is unable to form an opinion at this stage that the accused has not committed an offence,”

-the Court observed.

“In the ultimate conclusion, considering the facts and circumstances of the case, gravity of the offense, severity of punishment, in my opinion, no case for bail is made out,” the Court said while rejecting the bail application.

“It is clarified that the observations made regarding the bail application is limited to the decision of the bail application and any observations made herein shall not affect the trial of the case. However, it is expected that the trial court shall make all sincere endeavors to expedite the proceedings of the trial and conclude the same as expeditiously as possible, in accordance with law, within a period of six months,”

-the order reads.

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