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Allahabad High Court grants bail to man held with over 1 kg charas

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The Allahabad High Court has granted conditional bail to one Musheer Hussain Khan of Pilibhit, who has served more than half his sentence for smuggling 1.050 kg charas.

A single bench of Justice Karunesh Singh Pawar passed this order while hearing a Criminal Appeal filed by Musheer Hasan Khan.

The counsel for the applicant-appellant submitted that the appellant has already been in jail for five years and one month approximately, which includes the period spent by him during trial as well as during pendency of the appeal.

As per the prosecution case, 1.050 kg charas is stated to have been recovered from the personal search of the applicant-appellant in three packets. Out of three packets, a sample has been drawn from one packet only. From other two co-accused persons, 150 gram each charas has been recovered and one sample each has been taken from the recovered contraband of other two accused persons. From the car, 500 gram charas has been recovered and from that also one sample has been taken.

The counsel for the applicant-appellant further submitted that total quantity recovered from the personal search of the applicant-appellant is 1.050 kg which is in three packets, however, sample has been taken only from one packet.

Since the recovered quantity was marginal above the commercial quantity and sample has been taken from only one packet which is contrary to the mandatory requirement of Standing Order, it shall not be treated as a commercial quantity, rather, it should be treated as above small quantity and less than commercial quantity. In support of his contention, the counsel for the applicant-appellant has placed reliance on the judgment of the Apex Court in the case of “Gaunter Dewin Kircher Vs State of Goa”, reported in “(1993) 4 SCC 145”.

It is further submitted on behalf of the applicant-appellant that since the recovered quantity is below commercial quantity, therefore, in view of the aforesaid judgment of the Apex Court, provisions of Section 37 NDPS Act will not apply in this case.

It is further submitted that there is no independent witness to the said recovery. The provisions of Section 57 of NDPS Act have not been followed and no written information has been given by the concerned officer, however, only information has been sent through wireless. Likewise, it is further submitted that the police has not taken charge of the seized article and delivered as mandated under Section 55 of NDPS Act.

Additional Government Advocate has opposed the application for bail submitting that the applicant-appellant has criminal history of 19 cases and therefore it is not safe to release the appellant on bail.

The counsel for the applicant-appellant rebutted the AGA’s argument and submitted that out of 19 cases he has been acquitted in seven cases, five cases of which were of preventive nature and that cannot be read as criminal history as they were imposed for a limited time and that time has expired way back. So far as the other five cases are concerned, the applicant-appellant has been enlarged on bail and so far as remaining two cases are concerned, they are the cases i.e 3229/11 and 3230/12, under Section 8/20 NDPS Act, PS Sungadi, District Pilibhit.

The Court noted,

So far as the period of incarceration is concerned, counsel for the applicant-appellant has relied on the judgment of “Salem Advocates Bar Association, Tamil Nadu Vs Union of India” reported in “2005(3) RCR (Civil) 530 (SC), wherein the Apex Court while dealing with the issue of disposing of the appeals under different Acts including the NDPS Act laid certain guidelines for the Courts to make an endeavour to decide the appeals.

Counsel for the applicant-appellant submitted that the appellant is covered under second guideline which is extracted below:-

“Where the convict is sentenced for more than ten years for having in his conscious possession a commercial quantity of contraband, he shall be entitled to bail if he has already undergone a total sentence of six years, which must include at least fifteen months after conviction.”

It is lastly contended on behalf of the applicant-appellant that twin condition of Section 37 (1)(b) and 37 (ii) that he is not likely to commit any offence while on bail, so far as this petition is concerned, it has been submitted that not likely to commit any offence relates to the offence likely to be committed under this Act, therefore, the criminal history of the appellant in cases other than the NDPS may not come as an impediment in regard to the decision so far as this condition is concerned.

“On due consideration to the argument advanced as well as perusal of the record and considering the fact the appellant has already been in jail for more than half of the sentence, so also the fact that mandatory provisions of sampling under 88 and 89 of Government of India instructions have not been followed, hence he may not be convicted in the trial and there is no history of the appellant of NDPS cases, the twin conditions under Section 37 of NDPS Act are satisfied and the appeal is not likely to be heard in the near future due to huge pendency of the cases in the Court and for that the appellant cannot be blamed, the Court is of the view that the case for bail is made out,” the Court observed while allowing the bail application.

The Court ordered,

Sentence of the appellant-applicant shall remain suspended during pendency of the appeal. Let the appellant-applicant involved in aforesaid case be released on bail on furnishing a personal bond with two sureties of the like amount to the satisfaction of the court concerned.

Considering the long incarceration of the appellant, a fine of 75% shall be kept in abeyance imposed by the trial court and the remaining fine of 25% shall be deposited by the appellant applicant within a period of two months from the date of his release.

The appellant-applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

It is made clear that bail is being granted to the appellant/ applicant on the condition that the counsel for the appellant shall appear to argue the appeal as and when the appeal is listed.

It is further made clear that in case the applicant/appellant commits any offence while on bail, the prosecution would be at liberty to file an application for cancellation of the bail.

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