# Aslam v. State of U.P

- **Citation:** (2021) 8 ILRA 471
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-06
- **Case number:** Criminal Misc. Ist Bail Application No. 27936 of 2021
- **Bench:** Naveen Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aslam-v-state-of-u-p-47233
- **Pages:** 4

## Headnote

Law-Code
of
Criminal
Procedure,1973-Section 439 & Narcotics
Drugs & Psychotropic Substances Act,
1985-Section 8/20-application-rejection1.5
kg
charas
recovered
from
the
applicant possession which is more than
commercial
quantity
and
he
was
apprehended from the spot-more so,
applicant had been involved in four cases
of same nature-no enmity between the
applicant and police-false implication is a
stereotyped
defence
raised
by
the
applicant. (Para 1 to 14).

B. The scheme of the section 37 reveals
that the exercise of power to grant bail is
not
only
subject
to
the
limitations
contained u/s 439 of the Cr.P.C., but is
also subject to the limitation placed by
section 37 which commences with nonobstante clause. The operative portion of
the said section is in negative form
prescribing the enlargement of bail to any
person accused of commission of an
offence
under
the
act,
unless
twin
conditions are satisfied. the first condition
is that the prosecution must be given an
opportunity to oppose the application; and
the second, is that the Court must be
satisfied
that
there
are
reasonable
grounds for believing that he is not guilty
of such offence. if either of these two
conditions is not satisfied, the ban for
granting bail operates.(Para 6 to 8)

The application is rejected. (E-5)

List of Cases cited:

## Text

8 All. Aslam Vs. State of U.P.
471
appropriate action/decision in the matter in
accordance with law.

(ii)-The copy of this order be
circulated to all the Hon'ble sitting judges
of this Court as well to the president,
Allahabad High Court Bar Association and
Advocates' association.

(iii)-The aforesaid proposal as
mentioned in paragraph no. 9 of this order,
be placed by the Registrar General before
Hon'ble the Acting Chief Justice for
necessary directions in the matter.

(iv)-A notice be issued to the
informant/opposite party No. 2, Gurdeep
Verma through Chief Judicial Magistrate
concerned, who will ensure service of
notice upon the informant/opposite party
No. 2 and submit report by the next date
fixed in the matter.

11- Let this case be listed on 7th of
September, 2021 before the appropriate
Bench.
----------
(2021)08ILR A471
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.08.2021

BEFORE

THE HON'BLE NAVEEN SRIVASTAVA, J.

Criminal Misc. Ist Bail Application No. 27936 of
2021

Aslam ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Ramesh Kumar

Counsel for the Opposite Party:
A.G.A.

A.
Criminal
Law-Code
of
Criminal
Procedure,1973-Section 439 & Narcotics
Drugs & Psychotropic Substances Act,
1985-Section 8/20-application-rejection1.5
kg
charas
recovered
from
the
applicant possession which is more than
commercial
quantity
and
he
was
apprehended from the spot-more so,
applicant had been involved in four cases
of same nature-no enmity between the
applicant and police-false implication is a
stereotyped
defence
raised
by
the
applicant. (Para 1 to 14).

B. The scheme of the section 37 reveals
that the exercise of power to grant bail is
not
only
subject
to
the
limitations
contained u/s 439 of the Cr.P.C., but is
also subject to the limitation placed by
section 37 which commences with nonobstante clause. The operative portion of
the said section is in negative form
prescribing the enlargement of bail to any
person accused of commission of an
offence
under
the
act,
unless
twin
conditions are satisfied. the first condition
is that the prosecution must be given an
opportunity to oppose the application; and
the second, is that the Court must be
satisfied
that
there
are
reasonable
grounds for believing that he is not guilty
of such offence. if either of these two
conditions is not satisfied, the ban for
granting bail operates.(Para 6 to 8)

The application is rejected. (E-5)

List of Cases cited:

1. St. of Ker. Vs. Rajesh (2020) AIR SC 721

(Delivered by Hon'ble Naveen Srivastava, J.)

1. Heard learned counsel for the
applicant, learned A.G.A. for the State and
perused the record.

2. By means of this application the
applicant who is involved in Case Crime
472 INDIAN LAW REPORTS ALLAHABAD SERIES
No.232 of 2021, under Section 8/20
N.D.P.S. Act, Police Station Bilaspur,
District Rampur, is seeking enlargement on
bail during pendency of trial.

3. In nutshell, the facts which led to
the prosecution of accused are that on
14.06.2021,
informant,
sub-Inspector,
Sanjay Kumar lodged first information
report at Police Station Bilaspur, District
Rampur against one accused, Aslam
alleging inter alia that on 14.06.2021 when
he alongwith other police personnel were
busy in checking of vehicles, he received
information through informer that some
persons having illegal and suspicious
goods, can be arrested if quick action be
taken. On such information, he after giving
information
to
the
higher
officers,
proceeded for the place of occurrence
alongwith other police personnel and they
reached at village Alinagar. Thereafter, by
using the necessary force, the police team
arrested the applicant on the spot. On
questioning,
he
disclosed
about
the
transportation of illegal Charas. On search
of bag, 1.5 kg. of Charas was recovered
from accused, Aslam and from the bag of
accused, Farid 2280 Alpramed tablet, Avil
injection and 1 kg. Charas from the
possession of three persons, as such total
2.5 kg. Charas, 2280 Alpramed tablet, Avil
injection,
three
syringe
have
been
recovered in this case. The accused could
not show the authorization of keeping the
same. On the basis of aforesaid recovery, a
case was registered against the accused at
Case Crime No.232 of 2021, under Section
8/20 N.D.P.S. Act, Police Station Bilaspur,
District Rampur.

4. Learned counsel for the applicant
argued that as per prosecution case, total
2.5 kg. illegal Charas is said to have been
recovered in this case, out of which 1.5 kg.
Charas was recovered from the bag of
applicant, Aslam and 1 kg. was recovered
from accused, Wasim. It is next submitted
that Investigating Officer has not followed
the procedure of Narcotic Drugs and
Psychotropic Substances Act (for short the
"N.D.P.S. Act"), the alleged recovery has
been planted and accused has been falsely
implicated. It is submitted that the applicant
may be released on bail.

5. Per contra, learned A.G.A.
appearing
on
behalf
of
the
State
vehemently
opposed
the
aforesaid
statement of learned counsel for the
applicant by contending that recovered 2.5
kg. Charas in this case is much more than
commercial quantity, out of which 1.5 kg.
Charas was recovered from the possession
of the applicant. There is no enmity
between the applicant and police team,
therefore, allegation of false implication
upon the applicant is without any basis and
against the evidence on record. The amount
which has been recovered from the
possession of the accused cannot be falsely
planted. The mandatory requirement as
provided under the N.D.P.S. Act has been
followed by the officer concerned. The
applicant is also involved in five other
cases i.e. Case Crime No.141 of 2006,
involving in N.D.P.S. Act, Case Crime
No.1569 of 2011, under Sections 395, 397
I.P.C., Case Crime No.403 of 2017,
involving in N.D.P.S. Act, Case Crime
No.4018 of 2018, involving in N.D.P.S.
Act and Case Crime No.139 of 2019, under
Section 8/20 N.D.P.S. Act, Police Station
Bilaspur, District Rampur, therefore, the
bail application of the applicant is liable to
be rejected.

6. There is no dispute that commercial
quantity of Charas is 1 kg., recovered and
seized total 2.5 kg. of Charas and out of
8 All. Aslam Vs. State of U.P.
473
which 1.5 kg. has been recovered from the
applicant, Aslam is more than commercial
quantity, therefore, provisions of Section
37 of N.D.P.S. Act is attracted in this case,
which is in addition to Section 439 of
Cr.P.C. and mandatory in nature. In view of
Section 37 of N.D.P.S. Act before granting
bail for the offence of N.D.P.S. Act till
conditions as provided Section 37 (1) (b) (i)
(2) had to be satisfied. Section 37 of
N.D.P.S. Act is quoted as below:-

"37. Offences to be cognizable
and non-cognizable. -- (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 27A
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 subsection (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."

7. On several occasion, the Apex
Court has considered the issue relating to
provision of Section 37 of N.D.P.S. Act
and in recent decision of Apex Court in
State of Kerala Vs. Rajesh reported in
AIR 2020 Supreme Court 721. Paragraph
nos.20 and 21 of the aforesaid judgment is
extracted below:-

"20. The scheme of Section 37
reveals that the exercise of power to grant
bail is not only subject to the limitations
contained under Section 439 of the Cr.P.C.,
but is also subject to the limitation placed
by Section 37 which commences with nonobstante clause. The operative part of the
said section is in the negative form
prescribing the enlargement of bail to any
person accused of commission of an
offence
under
the
Act,
unless
twin
conditions are satisfied. The first condition
is that the prosecution must be given an
opportunity to oppose the application; and
the second, is that the Court must be
satisfied that there are reasonable grounds
for believing that he is not guilty of such
offence. If either of these two conditions is
not satisfied, the ban for granting bail
operates.

21. The expression "reasonable
grounds" means something more than
prima facie grounds. It contemplates
substantial probable causes for believing
that the accused is not guilty of the alleged
offence.
The
reasonable
belief
contemplated in the provision requires
existence of such facts and circumstances
as are sufficient in themselves to justify
satisfaction that the accused is not guilty of
the alleged offence. In the case on hand,
the High Court seems to have completely
overlooked the underlying object of Section
37 that in addition to the limitations
provided under the Cr.P.C. or any other
474 INDIAN LAW REPORTS ALLAHABAD SERIES
law for the time being in force, regulating
the grant of bail, its liberal approach in the
matter of bail under the N.D.P.S. Act is
indeed uncalled for."

8. The provisions of Section 37 of the
N.D.P.S. Act provide that the legal norms
which have to be applied in determining
whether a case for grant of bail has been
made out. There is specific statutory
presumption in relation to contraband that
comes within the ambit of N.D.P.S. Act. In
view of Section 54 of the N.D.P.S. Act
presumption shall be drawn against the
accused unless and until the contrary is
proved. The expression "unless and until
the contrary is proved", clearly imposes the
burden of proving that possession of
prohibited substance is legal on the accused
himself.

9. Further, no material has been
brought on record by the applicant to show
that there was any prior ill-will or enmity
of the applicant with the police personnel
concerned.

10. Illicit trafficking is an organized
crime and are done adopting different
modus operandi by a group of persons with
their different role. So far as plea of false
implication is concerned, in my view, it is a
stereo typed defence raised in every case,
where accused are found in possession of
contraband. In such a situation, this kind of
plea of false implication without any basis
is not liable to be accepted at this stage.
The devastating effects of narcotic drugs
and psychotropic substance on any person
who comes to its touch are well known.

11. It is also well settled that a proper
administration of the criminal justice
delivery system, requires balancing the
rights of the accused and the prosecution.

12. Undoubtedly rights of the accused
are important, but equally important is the
societal interest for bringing the offender to
book and for the system to send right
message to all in the society. Undue
sympathy for offender would be more harm
to justice system to undermine the public
confidence in the efficacy of law.

13. In the light of the above-mentioned
facts and considering the recovery of 1.5 kg.
Charas, coupled with the fact that the
applicant was apprehended from the spot, and
was having conscious and constructive
possession over the recovered Charas, I do
not find any reasonable ground in terms of
Section 37 of the N.D.P.S. Act to hold at this
stage that applicant is not guilty of an offence
and he is not likely to commit any offence
while on bail.

14. It is also made clear that the Trial
Court shall be absolutely free to arrive at its
independent conclusions on the basis of
evidence led unaffected by anything said in
this order.

15. In view of the above, I do not find
any good ground for enlarging the applicant
on bail at this stage. The bail application of
the applicant is accordingly, rejected.
----------
(2021)08ILR A474
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.08.2021

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Appeal No 631 of 2001

Chanda ...Appellant
Versus
State of U.P. ...Opposite Party