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TMI Blog2022 (4) TMI 1639X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the parties, nature of offence, evidence on record, pending investigation and considering the complicity of accused, severity of punishment, at this stage, without commenting any opinion on the merits of the case, this Court is not inclined to release the applicants on bail - bail application rejected. - Hon'ble Krishan Pahal, J. For the Applicant :- Mohd. Salman, Anuj Dayal, Awadhesh Mishra, Manish Srivastava, Nasreen Bano, Pramod Kumar. For the Opposite Party :- A.S.G., Akhilesh Awasthi, Sikha Sinha. ORDER HON'BLE KRISHAN PAHAL, J. 1. Since the above two bail applications of the accused-applicants pertain to common recovery, therefore, I am deciding these bail applications by a common judgment. 2. Heard Sri Anuj Dayal, learned counsel for applicants and Sri Akhilesh Kumar Awasthi, learned counsel for the N.C.B. and perused the record. 3. Applicants seek bail in Case Crime No.03 of 2020, under Sections 8(C)/18/29 of Narcotic of Drug and Psychotropic Substances Act, 1985, Police Station N.C.B., District Lucknow, during the pendency of trial. Facts in Brief:- 4. As per prosecution story, on the secret information received by N.C.B. from a squealer on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 was less than the quantity sealed and sent to him. As he rightly emphasised, the question was not how much was seized, but whether there was an actual seizure, and whether what was seized was really sent for chemical analysis to PW 1. The prosecution has not been able to explain this discrepancy and, therefore, it renders the case of the prosecution doubtful. 7. Learned counsel for the applicants has further stated that as the quantity of each sample for chemical analysis should not be less than 24 grams in the case of Opium. The requisite directions provided in Standing Order 1/89 dated 13.06.1989 have not been followed and the applicants are entitled for bail on this ground only. As in the present case, two samples were found less than the minimum quantity of 24 grams. 8. Learned counsel for the applicants has placed reliance on the judgment of this Court passed in Criminal Appeal No.1821 of 1998 (Jai Pal and Another vs. State of U.P.) decided on 23.01.2018. Relevant part of the judgment is quoted hereinasunder:- 13. Firstly, it has to be seen whether it was necessary for prosecution to take weight of the recovered contraband substance and its sample or not. In this regard, lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cord reveals that in recovery memo 75 grams. opium is alleged to have been found from the accused but no mention is made as to how the same was assessed to be 75 grams. as no weighing machine is recorded to have been called for, for its weighing nor the quantity of its sample is recorded therein. In this regard, P.W.1 has stated the same facts which have been mentioned in the recovery memo. In crossexamination this witness admitted that the weight of opium was recorded to be 75 gram on the basis of conjecture. Similarly P.W.2 has also repeated the same statement as is mentioned in the recovery memo, in examination-in-chief but even he has not disclosed as to how the same was weighed to be 75 grams. Both these witnesses have also not stated about weighing of the sample of the contraband also. It would also be pertinent to mention here that in the F.S.L. report also the quantity received of opium for being tested has not been recorded, hence, it cannot be held that the required minimum quantity of 24 gram was sent to them for being analysed which would also make the correctness of the said report to be doubtful. 9. Learned counsel for the applicants has also placed much reliance on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of conviction or acquittal. The recovered contraband is commercial in quantity. The accused persons are the residents of Jharkhand and there is nothing on record to suggest that they have been falsely implicated by the N.C.B. and there is nothing on record to suggest as to what animosity the N.C.B. had with the applicants and the another accused person. The applicants are the resident of Jharkhand. There is no reason for their false implication, that too regarding a recovery of this magnitude. 12. Learned counsel for N.C.B. has placed reliance on the following judgments :- 1. Than Kunwar vs. State of Haryana [2020 (5) SCC 260] 2. Ramesh Rana vs. State of U.P. [2019 SCC Online All 4374] 3. Union of India Through N.C.B. vs. Md. Nawaz Khan [AIR 2021 SC 4476] 4. Union of India vs. Mohanlal and another [(2012) 7 SCC 712] 5. State of Kerala vs. Rajesh [AIR 2020 SC 721] 6. State of Punjab vs. Baljinder Singh [(2019) 10 SCC 473] 7. Sumit Tomar vs. State of Punjab [AIR 2012 SC 728] 8. Union of India vs. Ram Samujh And another [(1999) 9 SCC 429] 9. Satpal Singh vs. State of Punjab [(2018) 13 SCC 813] 10. Khet Singh vs. Union of India1 [2002 CRI. L. J. 1832] 11. Dehal Singh vs. State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) When an application is made Under Sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn Under Sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.] 13. It is manifest from Section 52A(2)(c) (supra) that upon seizure of the contraband the same has to be forwarded either to the officer in-charge of the nearest police station or to the officer empowered Under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory (b) certifying photographs of such drugs or substances taken before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defence. The sample has been taken before the concerned Magistrate, which negates the theory of any kind of adulteration. There is nothing on record to suggest that there is any animosity of the accused to the officials of the N.C.B. The Standing Order No. 1/88 has been complied with. The call details further corroborate the prosecution story. 16. Minor discrepancy in the weight of the sample sent at the Forensic Laboratory cannot shake the roots of the prosecution case. 17. Considering the facts and circumstances of the case, submissions advanced by learned counsel for the parties, nature of offence, evidence on record, pending investigation and considering the complicity of accused, severity of punishment, at this stage, without commenting any opinion on the merits of the case, this Court is not inclined to release the applicants on bail. 18. Both the bail applications are, accordingly, rejected. 19. However, it is directed that the court below may proceed with the trial and reach at the logical conclusion expeditiously, if there is no legal impediment, within a period of one year from the date of production of a certified copy of this order. 20. It is clarified that the observa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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