# Aditya Kumar v. Union of India Opp. Party

- **Citation:** (2022) 11 ILRA 1288
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-13
- **Case number:** Criminal Misc. Bail Application No. 42918 of 2021
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aditya-kumar-v-union-of-india-opp-party-47792
- **Pages:** 6

## Headnote

Law
-Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985
-
Section 8(C)/21/29-No independent witness
of the alleged recovery-the constables of
Railway Police Force cannot be said to be
independent witnesses- the recovery memo
does not bear signatures of the Gazetted Officer.
Page 6 of - a copy of the test report has not
been filed by the NCB- The test report filed by
the applicant categorically states that the
substance was not found to be Heroin but it was
Morphine- no criminal history- All the witnesses
in the present case are officers and officials of
Narcotic
Control
Bureau
and
personnel
belonging
to
Railway
Protection
Force,
therefore, there appears to be no reasonable
apprehension that in case the applicant is
released on bail, he would influence the
witnesses.

Bail granted. (E-9)

List of Cases cited:

## Text

1288 INDIAN LAW REPORTS ALLAHABAD SERIES
IPC, offence committed will fall under
Section 304 (Part-I) IPC.

38. In view of the aforesaid
discussion, we are of the view that appeal
has to be partly allowed. The conviction of
the appellants under Section 302 IPC is
converted into conviction under Section
304 (Part-I) IPC and the appellants are
sentenced to undergo seven years of
incarceration. The fine and default sentence
are maintained.

39. Accordingly, the appeal is partly
allowed.
----------
(2022) 11 ILRA 1288
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.09.2022

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Misc. Bail Application No. 42918 of
2021

Aditya Kumar ...Applicant
Versus
Union of India ...Opp. Party

Counsel for the Applicant:
Sri Abrar Ahmad Siddiqui, Sri Abhishek Kumar
Mishra, Sri Chandrakesh Mishra, Sri Rakesh Pati
Tiwari, Sri Daya Shankar Mishra (Sr. Advocate)

Counsel for the Opp. Party:
Ashish Pandey

Criminal
Law
-Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985
-
Section 8(C)/21/29-No independent witness
of the alleged recovery-the constables of
Railway Police Force cannot be said to be
independent witnesses- the recovery memo
does not bear signatures of the Gazetted Officer.
Page 6 of - a copy of the test report has not
been filed by the NCB- The test report filed by
the applicant categorically states that the
substance was not found to be Heroin but it was
Morphine- no criminal history- All the witnesses
in the present case are officers and officials of
Narcotic
Control
Bureau
and
personnel
belonging
to
Railway
Protection
Force,
therefore, there appears to be no reasonable
apprehension that in case the applicant is
released on bail, he would influence the
witnesses.

Bail granted. (E-9)

List of Cases cited:

1. Makhan Singh Vs St.of Har., (2015) 12 SCC
247

2. U.O.I. Vs Rattan Mallik, (2009) 2 SCC 624
(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Daya Shankar Mishra,
Senior
Advocate
assisted
by
Shri
Chandrakesh Mishra Advocate, the learned
Counsel for the applicant and Sri Ashish
Pandey Advocate, the learned counsel for
the Narcotic Control Bureau.

2. The present application has been
filed for release of the applicant on bail in
N.C.B. Crime No. 28 of 2021, under
Section 8(C)/21/29 of Narcotic Drugs and
Psychotropic Substances Act, P.S. N.C.B.
Lucknow.

3. The search, seizure-cum- recovery
memo dated 04-07-2021 states that an
information was received in the N.C.B.
Office at Lucknow on 03-07-2021 at 21:30
hours that a person was carrying Heroin in
Coach No. 9 of Train No. 02357 from
Gaya, Bihar to Bareilly, U.P. and the train
would reach Bareilly junction on 04-072021 between 06:00 hours to 07:00 hours.
In furtherance of the aforesaid information,
a team of Officers of N.C.B consisting of
the Intelligence Officer Mohd. Farooq,
11 All. Aditya Kumar Vs. Union of India
1289
Supervision
Assistant
Vivek
Kumar,
Hawaldar Hridesh Kumar and Driver
Brijesh Kumar was constituted. The team
assembled in its office at Lucknow and
started its journey on 03-07-2021 at 22:30
hours from Lucknow office and reached
Bareilly junction on 04-07-2021 at about
05:00 hours. No person agreed to become a
witness
to
the
proposed
seizure
proceedings. The Inspector R.P.F. junction
was requested to provide independent
witnesses, who deputed two constables of
R.P.F. to act as witnesses.

4. When the train reached Bareilly
junction, the N.C.B. team apprehended the
applicant and from a bag kept near him
about 300 gms. brown coloured narcotic
powder kept in a white transparent
polythene was recovered. However, in
personal search of the applicant, no
objectionable substance was recovered.
Upon testing the narcotic substance with a
Drug Detection Kit, it was found to be
Heroin. The NCB team conducted a repeat
test with the kit and in that also, the
substance was found to be Heroin. It is
alleged that the applicant also told that the
substance was Heroin. It's gross weight
along with the double white transparent
polythene in which it was packed, was
found to be 391 gms.

5. The seizure memo contains a
narration that the seizure proceedings
commenced on 04-07-2021 at 07:45 hours
and continued till 12:20 hours, the seizure
memo consisting of four pages was
prepared, read over to the applicant and it
was signed by the Intelligence Officer,
NCB, Lucknow, the Inspector R.P.F., the
witnesses and the applicant.

6. The applicant filed an application
for being released on bail before the
learned Additional Sessions Judge/Special
Judge, N.C.B., Bareilly, which was rejected
by means of an order dated 04-09-2021 on
the ground that commercial quantity of
Heroin was recovered from his possession
in presence of the witnesses.

7. In the affidavit filed in support of
the bail application it has been stated that
the applicant is innocent and he has been
falsely implicated in the present case and
that nothing was recovered from him. It has
also been stated in the affidavit that the
applicant does not have any criminal
history.

8. A counter affidavit has been filed
on behalf of the N.C.B. in which it has
been stated that the substance found in the
bag of the applicant was tested with the
help of the DD Kit and as per the test report
the substance was Heroin. It's net weight
was found to be 358 gms and gross weight
was 391 gms and the statement of the
applicant was recorded and he confessed
that he was carrying Heroin to be delivered
to a person as per the instruction of his
cousin Manish Kumar.

9. In paragraph 15 of the counter
affidavit it has been stated that a sample of
the seized contraband substance was sent to
the Government Laboratory and after
chemical
examination,
the
Chemical
Examiner submitted a report stating that the
sample under reference answered positive
test for Heroin.

10. A rejoinder affidavit and a
supplementary rejoinder affidavit have
been filed on behalf of the applicant and a
copy of the test report dated 09-11-2021
issued by the Central Revenues Control
Laboratory, Hillside Road, Pusa, New
Delhi, mentions that the sample did not
1290 INDIAN LAW REPORTS ALLAHABAD SERIES
answer
positive
test
for
Heroin
(Diacetylmorphine); however, the sample
under reference answers positive test for
Morphine.

11. Sri Daya Shankar Mishra, the
learned Senior Advocate appearing for the
applicant has submitted that the conduct of
the N.C.B. Officers in the present case
raises suspicion against the genuineness of
their allegations. He has submitted that as
per the averments made in the recovery
memo itself, the officers of N.C.B. had
received an information at Lucknow that
the applicant was carrying Heroin from
Gaya, Bihar to Bareilly through Train No.
02357,
which
train
passes
through
Lucknow
and
their
conduct
in
not
apprehending the applicant at Lucknow
rather the entire team travelled the whole
night from Lucknow to Bareilly to
apprehend the applicant at Bareilly, is not a
natural course of conduct and it raises
doubts against their story. He has further
submitted that although the alleged search
and seizure was conducted at a Railway
Station, which is a public place, filled with
independent
persons,
there
is
no
independent
witness
of
the
alleged
recovery. The constables of Railway Police
Force, who witnessed the alleged recovery,
search and seizure, cannot be said to be
independent witnesses.

12. Sri. Misra has further submitted
that it is mentioned in the search and
seizure memo that in test and re-test of the
substances conducted by the DD kit, both
times it was found to be Heroin. In
paragraph 15 of the counter affidavit also,
the Intelligence Officer, N.C.B. Zonal Unit
Lucknow, has stated on oath "that the
samples which were drawn from the seized
contraband was sent to the Government
Laboratory with the permission of the
remand
Court
and
after
chemical
examination
the
chemical
examiner
submitted the report stating there in that
the samples under reference answered
positive test for Heroin', but he has not
annexed a copy of the said test report. The
copy of test report filed with the rejoinder
affidavit states that the substance was not
found to be Heroin but it was Morphine.
This contradiction in the test reports makes
the prosecution case self-contradictory and
doubtful. He further submitted that the test
memo mentions the weight of the samples
to be 5 gms. each whereas the test report
mentions gross weight of sample received
to be 8.4 gms and the gross weight of
remnant returned with plastic pouch to be
6.5 gms and this discrepancy in the weights
has not been explained, which too makes
the prosecution case doubtful.

13. Per contra, Sri Ashish Pandey, the
learned counsel for the N.C.B. has
submitted that the search was conducted in
the presence of a Gazetted Officer. He has
further submitted that the difference in test
results of the DD Kit and that of the
Government Laboratory are insignificant
because Heroin and Morphine, both are
narcotic substances and irrespective of the
fact whether the substances being found
with the applicant was Heroin or Morphine,
he would be liable to be prosecuted under
the NDPS Act.

14. Sri. Pandey has further submitted
that the search has been conducted in
presence of a Gazzetted Officer and,
therefore, there is no reasonable ground for
doubting the genuineness of the search and
deizure.

15. The applicant is charged with
offences under Sections 8 (c) / 21 / 29 of
the Narcotic Drugs and Psychotropic
11 All. Aditya Kumar Vs. Union of India
1291
Substances Act, which carry a rigorous
imprisonment for a term which shall not be
less than ten years but which may extend to
twenty years, and shall also be liable to fine
which shall not be less than one lakh rupees
but which may extend to two lakh rupees
and in which bail can be granted only after
the stringent conditions of Section 37 of the
Act are fulfilled.

16. In Makhan Singh v. State of
Haryana, (2015) 12 SCC 247 while dealing
with a case under the Narcotic Drugs and
Psychotropic Substances Act, the Supreme
Court reiterated that "...It is a well-settled
principle of the criminal jurisprudence that
more stringent the punishment, the more
heavy is the burden upon the prosecution to
prove the offence."

17. In Union of India v. Rattan
Mallik, (2009) 2 SCC 624, the Hon'ble
Supreme Court explained the principles
applicable in grant of Bail in offences
under the NDPS Act as follows: -

"11. Section 37 of the NDPS Act, as
substituted by Act 2 of 1989 with effect
from 29-5-1989 with further amendment by
Act 9 of 2001 reads as follows:

"37. Offences to be cognizable and
non-bailable.--(1)
Notwithstanding
anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974),--

(a) every offence punishable under this
Act shall be cognizable;

(b) no person accused of an offence
punishable for offences under Section 19 or
Section 24 or Section 27-A and also for
offences involving commercial quantity
shall be released on bail or on his own
bond unless--

(i) the Public Prosecutor has been
given an opportunity to oppose the
application for such release, and

(ii) where the Public Prosecutor
opposes the application, the court is
satisfied that there are reasonable grounds
for believing that he is not guilty of such
offence and that he is not likely to commit
any offence while on bail.

(2) The limitations on granting of bail
specified in clause (b) of sub-section (1)
are in addition to the limitations under the
Code of Criminal Procedure, 1973 (2 of
1974), or any other law for the time being
in force on granting of bail."
12. It is plain from a bare reading of the
non obstante clause in Section 37 of the
NDPS Act and sub-section (2) thereof that
the power to grant bail to a person accused
of having committed offence under the
NDPS Act is not only subject to the
limitations imposed under Section 439 of
the Code of Criminal Procedure, 1973, it is
also subject to the restrictions placed by
clause (b) of sub-section (1) of Section 37
of the NDPS Act. Apart from giving an
opportunity to the Public Prosecutor to
oppose the application for such release, the
other
twin
conditions
viz.
(i)
the
satisfaction of the court that there are
reasonable grounds for believing that the
accused is not guilty of the alleged offence;
and (ii) that he is not likely to commit any
offence while on bail, have to be satisfied.
It is manifest that the conditions are
cumulative
and
not
alternative.
The
satisfaction contemplated regarding the
accused being not guilty, has to be based
on "reasonable grounds".

13.
The
expression
"reasonable
grounds" has not been defined in the said
Act but means something more than prima
facie grounds. It connotes substantial
probable causes for believing that the
accused is not guilty of the offence he is
charged with. The
reasonable belief
contemplated in turn, points to existence of
such facts and circumstances as are
1292 INDIAN LAW REPORTS ALLAHABAD SERIES
sufficient
in
themselves
to
justify
satisfaction that the accused is not guilty of
the alleged offence (vide Union of India v.
Shiv Shanker Kesari. (2007) 7 SCC 798).
Thus, recording of satisfaction on both the
aspects, noted above, is sine qua non for
granting of bail under the NDPS Act.

14. We may, however, hasten to add that
while considering an application for bail with
reference to Section 37 of the NDPS Act, the
court is not called upon to record a finding of
"not guilty". At this stage, it is neither
necessary nor desirable to weigh the
evidence meticulously to arrive at a positive
finding as to whether or not the accused has
committed offence under the NDPS Act. What
is to be seen is whether there is reasonable
ground for believing that the accused is not
guilty of the offence(s) he is charged with and
further that he is not likely to commit an
offence under the said Act while on bail. The
satisfaction of the court about the existence of
the said twin conditions is for a limited
purpose and is confined to the question of
releasing the accused on bail."

18. Analyzing the facts of the present
case for the purpose of deciding the
applicants claim for bail in light of the
aforesaid law, I find the following facts to
be relevant at this stage: -

(i) Although the search and seizure
was conducted at Bareilly Railway Station
there is no independent witness of the
alleged recovery.

(ii) The constables of Railway Police Force
cannot be said to be independent witnesses.

(iii) Although it is mentioned in the
recovery memo that search was conducted
in presence of a Gazzetted Officer Sri.
Harjeet Singh ''ADEN / BE', but the
recovery memo does not bear signatures of
the Gazetted Officer.

(iv) The recovery memo claims that in
test and re-test of the substances conducted
by the DD kit, both times it was found to be
Heroin.

(v) The Intelligence Officer, N.C.B.
Zonal Unit Lucknow, has stated on oath
that the sample was tested by the
Government Laboratory and the report
states that the samples under reference
answered
positive
test
for
Heroin.
However, a copy of the said test report has
not been filed by the NCB.

(vi) The test report filed by the
applicant categorically states that the
substance was not found to be Heroin but it
was Morphine.

(vii)
Heroin
and
Morphine
are
different and distinct substances. Heroine
((Diacetylmorphine)) is mentioned at Serial
No. 56 of the Notification dated 16-071996
specifying
small
quantity
and
commercial quantity issued under Section 2
(vii) (a) and 2 (xxiii) (a) of the Act and
Morphine is mentioned at Serial No. 77
thereof.

19. The aforesaid facts raise doubts
against the prosecution case and it gives
rise to a reasonable ground for prima facie
believing at this stage that the applicant
may not be held guilty of the alleged
offences.

20. Moreover, the applicant has no
criminal history and, therefore, there is no
ground to believe that in case the applicant
is released on bail, he would again indulge
in committing similar offences.

21. All the witnesses in the present
case are officers and officials of Narcotic
Control Bureau and personnel belonging to
Railway Protection Force, therefore, there
appears to be no reasonable apprehension
11 All. Puttan Vs. State of U.P. & Anr.
1293
that in case the applicant is released on bail,
he would influence the witnesses.

22. No other material has been placed
by the respondent-Narcotic Control Bureau,
which may indicate that the applicant is not
entitled to be released on bail.

23. Keeping in view the aforesaid
facts and without making any observations
on merits of the case, I am of the view that
the applicant is entitled to be released on
bail pending conclusion of the trial. The
bail application is accordingly allowed.

24. Let the applicant - Aditya
Kumar, be released on bail in N.C.B.
Crime No. 28 of 2021, under Section
8(C)/21/29
of
Narcotic
Drugs
and
Psychotropic Substances Act, P.S. N.C.B.
Lucknow, on his furnishing a personal
bond and two reliable sureties each of the
like amount to the satisfaction of the court
concerned subject to following conditions:-

(i) The applicant will not tamper with
the evidence during the trial.

(ii) The applicant will not influence
any witness.

(iii) The applicant will appear before
the trial court on the dates fixed, unless
personal presence is exempted.

(iv) The applicant shall not directly or
indirectly make inducement, threat or
promise to any person acquainted with the
facts of the case so as to dissuade him
from disclosing such facts to the Court to
any police officer or tamper with the
evidence.

25. In case of breach of any of the
above conditions, the prosecution shall be
at liberty to move an application before this
Court seeking cancellation of bail.
----------
(2022) 11 ILRA 1293
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.11.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE JAYANT BANERJI, J.

Writ C No. 27495 of 2021
With
Writ C No. 23674 of 2021
Writ C No. 1786 of 2022
Writ C No. 1858 of 2022

Puttan ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Sandeep Kumar Tripathi

Counsel for the Respondents:
C.S.C., Sri Abhishek Srivastava, Sri B.P.
Singh Kachhawah, Sri Manoj Kumar Singh,
Sri Rajesh Yadav, Sri M.C. Chaturvedi (Sr.
Advocate)

A. Civil Law - Electricity Act, 2003 - UP
Regulatory
Commission
(Standards
of
Performance), Regulations, 2019 - Clause
2.1(g), 7, 8, 4.1, 9.4.3, Schedule I and III
- Compensation - Practice of raising fake
demand, issuing highly excessive bills and
adopting coercive measure of detention
against the consumers by the Electricity
Distribution Corporation - Permissibility -
High-handedness of mighty officers of the
St. Government - Responsibility to pay
compensation - SoP Regulation of 2019
was not observed by the authorities -
Effect
-
High
Court
issued
general
mandamus to all concerned authorities of
Power Distribution Corporations that they
shall at their own compute compensation
payable to complainants in terms of the
SOP
Regulations
2019
as
per
data
available with them with respect to the
each
complaint
and
shall
pay