The Allahabad High Court has directed SSP Gautam Budh Nagar to act against police officers of Phase-II Police Station, Noida, for falsely accusing a person of smuggling ganja.

A single-judge bench of Justice Rahul Chaturvedi passed this order while hearing a Criminal Misc Bail Application filed by Lalit Gupta. By means of the bail application the applicant, who is facing prosecution in connection with Case u/s 8/20 of NDPS Act, PS -Phase- 2, District- Gautam Budh Nagar, is seeking his enlargement on bail during trial. The applicant has been in jail since June 14, 2021.

Shri Krishna Shukla, counsel for the applicant, has drawn attention of the Court to the FIR lodged by Sub-Inspector Ram Chandra Singh, PS Phase-II, Noida of Gautam Budh Nagar Commissionerate on June 14, 2021 at 13.34 hours against the lone named accused person Lalit Gupta u/s 8/20 of NDPS Act at PS Phase-II, Gautam Budh Nagar with the allegation that the informant, who is Sub-Inspector, along with his team members and co-accused Sonu to bust a bigger racket dealing in the psychotropic substance, went to Kakrala 112 Feet Road, the accused Sonu indicated a person sitting over the culvert, that he is a person who deals with psychotropic substances. The police personnel overpowered that person and caught hold of him. He disclosed his name as Lalit Gupta s/o Ramesh Chandra Gupta, Police Station Sasni, District Hathras.

The nabbed accused himself disclosed that the plastic gunny bag which he is having, contains cannabis (Ganja) and thereafter a usual formality of asking the accused for alleged frisking in front of Gazetted Officer, as contemplated under Section 50 of the NDPS Act, was made by the informant and the samples of psychotropic substance were made for its testing. The total recovery shown is 29.6 kg cannabis in four packets, said to have been carried by the applicant without any valid license.

The bail application of the applicant was rejected by the Additional District & Sessions Judge/FTC-2, Gautam Budh Nagar on July 2, 2021. Hence the bail application.

It is contended by counsel for the applicant that till date there is no laboratory report on record to substantiate that the alleged seized substance is cannabis. Secondly, it was contended that the mandatory requirement of Section 50 of the NDPS Act has not been followed and as mentioned above, it was a mere formality of the FIR by the informant.

There is no independent witness to the alleged recovery, though the incident is said to have taken place in broad daylight in an open area. In the affidavit the applicant himself has disclosed that from the Year 2001 to 2017 the applicant has got criminal antecedents of 11 cases, out of which only three cases relate to NDPS Act and rest of cases are of Section 60 of the Excise Act.

The Court noted, “From the criminal antecedents of the applicant, it is evident that there is no case registered outside the district Hathras against the applicant. In fact, it is a first case of PS Phase-II, Gautam Budh Nagar Commissionerate. In all these cases, the applicant has been bailed out and facing trial. After 2017, there is no other case to the credit of the applicant.

“The primary argument made by the counsel for the applicant is that the way and the manner in which the applicant is being involved/dragged in the case is depictive of a typical approach by the police and a false implication by them in nabbing the applicant. Counsel for the applicant has filed a supplementary affidavit dated August 25, 2021, in which he has tried to expose the typical approach by the police, who for the reason best known to them, nailed the applicant in the offence.

“It has been contended by counsel for the applicant in the supplementary affidavit that the applicant was, in fact, lifted from his residence at Teacher’s Colony Sasni Kotwali, District Hathras by four masked persons in civil dress. A CCTV has recorded every movement of the act of lifting of the applicant by those four persons.

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“The wife of the applicant, who is a typical house maker, was advised by her relatives to make a complaint to the Superintendent of Police, Hathras narrating the entire story for the alleged abduction of her husband by four-five masked persons from her residence on June 11, 2021 around 7.45 P.M.

“After receipt of said application from the wife of the applicant, SP Hathras on his own wisdom entrusted the inquiry to one Vipin Kumar Yadav, SI who submitted its report on August 5, 2021. The said report was received by the applicant’s wife through RTI, and as such, she received that inquiry report on August 5, 2021.

“M.C. Chaturvedi, Additional Advocate General, candidly and fairly conceded the fact that there are excesses made on the part of the police of the concerned police station. There is neither any Aamad Report at the police station at Hathras nor the police personnel were in proper dress, nor any proper process was issued by the concerned court to arrest such type of persons.

The Court said that this lifting of the applicant was affected way back on June 11, 2021 by those unnamed, masked persons and SI Ram Chandra Singh, in order to win the laurels of his senior officers, created a sham prosecution story implicating the applicant in this offence. It is simply pitiable on the part of the informant, who brought down the esteem of the police to the shambles.

There seems to be an image of police. No doubt, the applicant has a criminal history of 11 cases, but no one has got an authority to add one more to his credit without having any substantial and credible evidence.

The Court further said, in the criminal law there is an aged old phrase “GIVE A DOG BAD NAME AND SHOOT HIM” and the police has done so in the case. The applicant himself is facing the misery of his own conduct but on account of his past credentials the police personnel are not authorized to add one more to his credit. The entire arrest is flimsy, fallacious and based on a make-believe theory.

The Court records its strongest exception and concern about the way and the functioning of the police. The Court expects from the SSP Gautam Budh Nagar to take a stringent criminal action against the informant of the FIR and identify all those four-five masked persons in a civilian dress, who lifted the applicant from his residence on the odd hours of the night without any authority or reason, after holding an internal departmental inquiry by him alone, and if they are found guilty, the SSP, Gautam Budh Nagar is further directed to lodge an FIR against all the erring persons including the informant as well as all the four-five persons who were masked and pounced upon the applicant from his residence, lifted him and booked him in the offence without any reason and intimate the Court by filing a proper affidavit before the Court concerned the Additional District & Sessions Judge/FTC-II, Gautam Budh Nagar latest by 31st December, 2021 as stringent action would also be taken against the SSP concern for the willful defiance of the Court’s order.

The Court further expects that the entire modus operandi adopted by the police, wherein the applicant has been lifted from his residence and planted in the case, puts the entire prosecution story as “obscura nubes dubiorum” (under the dark cloud of doubts).

“The alleged seizure of psychotropic substances too is a doubtful proposition and makes the entire prosecution story as a malicious prosecution and the arrest an illegal one. Taking into account the manner and the way in which the applicant has been lifted and involved in the case and keeping in view the nature of the offence, evidence on record regarding complicity of the accused and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail,”

-the Court observed while allowing the Bail Application.

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The Court ordered Lalit Gupta, who is involved in 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 CrPC, 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.

(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 CrPC. 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. (v) The Trial Court may make all possible efforts/endeavours and try to conclude the trial within a period of one year after the release of the applicant.