# Austin Paul v. State of U.P

- **Citation:** Bail No. 2738 of 2020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-08
- **Case number:** Bail No. 2738 of 2020
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/austin-paul-v-state-of-u-p-46315
- **Pages:** 8

## Headnote

A. Criminal Law- The Narcotic Drugs and
Psychotropic
Substances
Act,
1985Sections
8/21-Code
of
Criminal
Procedure,1973-Section 439 -applicationallowed-applicant prayed that he has been
falsely implicated by the police officer
during
lockdown
alleging
that
the
applicant
possessed
6
grams
of
smack.(Para 5,18, 25, 26)
At the stage of considering bail application,
detailed examination of the merits or demerits
of
the
materials
relied
upon
by
the
prosecution,
should
be
avoided.
The
jurisdiction to grant bail has to be exercised
on the basis of the well-settled principles
having regard to the facts and circumstances
of each case such as nature and severity of
punishment, character, behaviour, reasonable
apprehension
of
tampering
with
the
witnesses.(Para 18,21,22)

The application is allowed. (E-6)

List of Cases Cited:-

Sundeep Kumar Bafna Vs. St. Of Mah. (2014) 16
SCC 623

## Text

3-5 All. Austin Paul Vs. State of U.P.
1293
concerned Judge to assess whether special
circumstances do exist in a particular case
warranting the jurisdiction of the High
Court being invoked directly. We answer
Questions (ii) and (iii) in the negative and
hold that Vinod Kumar does not merit any
reconsideration or further explanation. It
would be for the concerned Judge to form
an opinion in the facts of each particular
case whether special circumstances do exist
and stand duly established.

22. Reference stands answered
accordingly. The individual applications
may now be placed for disposal before the
appropriate Bench for disposal in light of
the above.
----------
(2020)03-05ILR A1293
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.05.2020

BEFORE

THE HON'BLE JASPREET SINGH, J.

Bail No. 2738 of 2020

Austin Paul ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
K.K. Sharma, Ajay Kumar Shukla

Counsel for the Opposite Party:
---

A. Criminal Law- The Narcotic Drugs and
Psychotropic
Substances
Act,
1985Sections
8/21-Code
of
Criminal
Procedure,1973-Section 439 -applicationallowed-applicant prayed that he has been
falsely implicated by the police officer
during
lockdown
alleging
that
the
applicant
possessed
6
grams
of
smack.(Para 5,18, 25, 26)
At the stage of considering bail application,
detailed examination of the merits or demerits
of
the
materials
relied
upon
by
the
prosecution,
should
be
avoided.
The
jurisdiction to grant bail has to be exercised
on the basis of the well-settled principles
having regard to the facts and circumstances
of each case such as nature and severity of
punishment, character, behaviour, reasonable
apprehension
of
tampering
with
the
witnesses.(Para 18,21,22)

The application is allowed. (E-6)

List of Cases Cited:-

Sundeep Kumar Bafna Vs. St. Of Mah. (2014) 16
SCC 623

(Delivered by Hon'ble Jaspreet Singh, J.)

1. In compliance of the order passed
by this Court dated 05.05.2020, the learned
counsel for the applicant has provided all
the necessary documents along with an email and a supplementary affidavit which
are taken on record.

2. The Court has heard the learned
counsel for the applicant as well as Sri J.S.
Tomar, learned A.G.A. for the Staterespondent.

3. The submissions of the learned
counsel for the applicant is that the
applicant has been falsely implicated. The
averments made in the First Information
Report do not constitute any offence and it
is motivated on account of the prevailing
circumstances of COVID-19 pandemic. It
has been submitted by learned counsel for
the applicant that as per the First
Information Report version, on 09.04.2020
at around 04:30 PM both the applicant and
one Sunny Masih were riding on a
motorcycle which was being driven by
Austin paul, the applicant.
1294 INDIAN LAW REPORTS ALLAHABAD SERIES

4. At the Polytechnic crossing, the
police party which was headed by Sri Anil
Kumar
Singh
had
intecepted
the
motorcycle and had asked the applicant as
why he was moving on the motorcycle
during the COVID-19 pandemic lockdown.
It was also questioned to the applicant that
he had got written the "Civil Court" on the
front of his motorcycle. The applicant
explained that his father is a working as a
Reader in the Civil Court at Lucknow and
that the applicant is working as a Nursing
Staff in the Medical College on contractual
basis and had been issued a duty pass by
the Medical College and under these
circumstances,
the
applicant
who
is
exempted from the lockdown is entitled to
move.

5.

The
applicant
had
also
suggested that since the police inspector
had got written the word "Police" on his
motorcycle, similarly, the applicant's
father had also got the word Civil Court
written and this rebuke perhaps irked
the police officer and under these
circumstances the applicant has been
implicated
and
as
per
the
First
Information Report, it has been alleged
that 6 grams of smack was found in
possession of the applicant no. 1 and 5
grams of smack was recovered from
Sunny Masih.

6. It is under these circumstances
that the First Information Report was
lodged and the applicant who brought
before the Remand Magistrate. It has
been submitted by learned counsel for
the applicant that the applicant does not
have any criminal history and he has
been falsely implicated and under these
circumstances the applicant is entitled
to be enlarged on bail.

7. The learned A.G.A. had raised
an objection and submitted that on the
own showing of the applicant, it would
indicate that he had made an application
for bail before the Remand Magistrate
and since the said application remained
un-disposed as per their own averments,
hence the present bail application is not
maintainable.

8. The learned counsel for the
applicant
while
responding
to
the
aforesaid objection and in respect of his
submissions has filed a supplementary
affidavit which has been taken on
record. It has been submitted that since
the application for alleged bail was
produced
before
the
Remand
Magistrate, the same is not going to
come in the way of the applicant,
inasmuch as, that the application was
before the Court which did not possess
the jurisdiction, hence it does not make
this application before the High Court,
as not maintainable.

9. The Court has considered the
rival submissions and also perused the
material available on record including
the supplementary affidavit filed by the
learned counsel for the applicant.

10. First and foremost, it would be
necessary to ascertain whether the bail
application is maintainable in light of
the objections raised by the learned
A.G.A.

11. The matter of this bail is
governed by The Narcotic Drugs and
Psychotropic Substances Act, 1985.
Section 36 of the Act of 1985 envisages
the establishment of Special Courts for
trial of offences under the said Act.
3-5 All. Austin Paul Vs. State of U.P.
1295

12. Section 36 of The Narcotic Drugs
and Psychotropic Substances Act, 1985
reads as under:-

13. Section 36 in The Narcotic Drugs
and Psychotropic Substances Act, 1985:-

"36. Constitution of Special
Courts.

1) The Government may, for the
purpose of providing speedy trial of the
offences under this Act, by notification in
the Official Gazette, constitute as many
Special Courts as may be necessary for
such area or areas as may be specified in
the notification.

(2) A Special Court shall consist
of a single Judge who shall be appointed by
the Government with the concurrence of
the Chief Justice of the High Court.

Explanation. In this sub-section,
High Court means the High Court of the
State in which the Sessions Judge or the
Additional Sessions Judge of a Special
Court was working immediately before his
appointment as such Judge.

(3) A person shall not be
qualified for appointment as a Judge of a
Special Court unless he is, immediately
before such appointment, a Sessions Judge
or an Additional Sessions Judge.]

Section 36 Sub Section (2) of the
said Act provides that the Special Court
consisting of a single Judge shall be
appointed by the Government with the
concurrence of the Chief Justice of the
High Court and Sub Section 3 clearly
indicates a person shall not be qualified for
appointment as a Judge of the Special
Court, unless he is immediately before such
appointment as an Additional Sessions
Judge."

14. From the perusal of the aforesaid
Section, it is clear that the Special Court
envisaged under Section 36 of The
Narcotic
Drugs
and
Psychotropic
Substances Act, 1985 is to be headed by a
Judge whose minimum qualification for
appointment ought to be a Sessions Judge
or an Additional Sessions Judge. In the
aforesaid
view
of
the
matter,
the
application for bail also ought to have been
produced before the Special Court headed
by the Special Court.

15. From the perusal of the material
available on record, it indicates that the
application for bail was placed before the
Remand Magistrate who needless to say
was neither the Sessions Judge nor an
Additional Sessions Judge nor was he a
Judge of the Special Court as envisaged
under Section 36 of the Act of 1985.

16. In view of the aforesaid, the
alleged application before the Remand
Magistrate
was
wholly
immaterial,
inasmuch as, neither the Magistrate was
competent
to
entertain
or
had
the
jurisdiction
to
deal
with
the
said
application. Thus, even if at all, any such
application was filed before the Remand
Magistrate it was filed before a Court
having no jurisdiction, therefore, this Court
is of the opinion that merely because the
said application remained pending or
undisposed of before a Court of no
jurisdiction is not going to affect the rights
of the applicant to approach this Court
under Section 439 Cr.P.C.

17. Section 439 Cr.P.C., would
indicate that it relates to special powers of
the High Court as well as of the Sessions
Court in respect of bail which reads as
under:-

439.Special powers of High
Court or Court of Session regarding
1296 INDIAN LAW REPORTS ALLAHABAD SERIES
bail.?(1) A High Court or Court of Session
may direct?

(a) that any person accused of an
offence and in custody be released on bail,
and if the offence is of the nature specified
in sub-section (3) of Section 437, may
impose any condition which it considers
necessary for the purposes mentioned in
that sub-section;

(b) that any condition imposed by
a Magistrate when releasing any person on
bail be set aside or modified:

Provided that the High Court or
the Court of Session shall, before granting
bail to a person who is accused of an
offence which is triable exclusively by the
Court of Session or which, though not so
triable, is punishable with imprisonment
for life, give notice of the application for
bail to the Public Prosecutor unless it is,
for reasons to be recorded in writing, of
opinion that it is not practicable to give
such notice.

(2) A High Court or Court of
Session may direct that any person who has
been released on bail under this Chapter be
arrested and commit him to custody."

18. At this stage, it will be gainful
to refer to certain observations made by
the Apex Court in the case of Sundeep
Kumar
Bafna
Vs.
State
of
Maharashtra 2014 (16) SCC 623 which
are being reproduced hereinafter for
convenient perusal:-

"7.
Article
21
of
the
Constitution states that no person shall
be deprived of his life or personal
liberty except according to procedure
established by law. We are immediately
reminded of three sentences from the
Constitution Bench decision in P.S.R.
Sadhanantham v. Arunachalam [P.S.R.
Sadhanantham v. Arunachalam, (1980)
3 SCC 141 : 1980 SCC (Cri) 649] ,
which we appreciate as poetry in prose:
(SCC p. 144, para 3)

"3. Article 21, in its sublime
brevity, guardians human liberty by
insisting
on
the
prescription
of
procedure established by law, not fiat
as sine qua non for deprivation of
personal
freedom.
And
those
procedures so established must be fair,
not fanciful, nor formal nor flimsy, as
laid down in Maneka Gandhi case
[Maneka Gandhi v. Union of India,
(1978) 1 SCC 248] . So, it is axiomatic
that our constitutional jurisprudence
mandates the State not to deprive a
person of his personal liberty without
adherence to fair procedure laid down
by law."

Therefore, it seems to us that
constriction or curtailment of personal
liberty
cannot
be
justified
by
a
conjectural
dialectic.
The
only
restriction
allowed
as
a
general
principle of law common to all legal
systems is the period of 24 hours post
arrest on the expiry of which an
accused must mandatorily be produced
in a court so that his remand or bail
can be judicially considered".
*-------*-------*-------*

"As observed in Gurcharan Singh
v. State (Delhi Admn.) [Gurcharan Singh v.
State (Delhi Admn.), (1978) 1 SCC 118 :
1978 SCC (Cri) 41] , there is no provision
in the CrPC dealing with the production of
an accused before the Court of Session or
the High Court. But it must also be
immediately noted that no provision
categorically prohibits the production of an
accused before either of these courts. The
legislature could have easily enunciated, by
use
of
exclusionary
or
exclusive
terminology, that the superior Court of
Session and High Court are bereft of this
3-5 All. Austin Paul Vs. State of U.P.
1297
jurisdiction or if they were so empowered
under the old Code now stood denuded
thereof. Our understanding is in conformity
with Gurcharan Singh [Gurcharan Singh v.
State (Delhi Admn.), (1978) 1 SCC 118 :
1978 SCC (Cri) 41] , as perforce it must.
The scheme of the CrPC plainly provides
that bail will not be extended to a person
accused of the commission of a nonbailable offence punishable with death or
imprisonment for life, unless it is apparent
to such a court that it is incredible or
beyond the realm of reasonable doubt that
the accused is guilty. The enquiry of the
Magistrate placed in this position would be
akin to what is envisaged in State of
Haryana v. Bhajan Lal [State of Haryana
v. Bhajan Lal, 1992 Supp (1) SCC 335 :
1992 SCC (Cri) 426] , that is, the alleged
complicity of the accused should, on the
factual matrix then presented or prevailing,
lead to the overwhelming, incontrovertible
and clear conclusion of his innocence.
CrPC severely curtails the powers of the
Magistrate while leaving that of the Court
of Session and the High Court untouched
and unfettered. It appears to us that this is
the only logical conclusion that can be
arrived at on a conjoint consideration of
Sections 437 and 439 CrPC. Obviously, in
order to complete the picture so far as
concerns the powers and limitations thereto
of the Court of Session and the High Court,
Section 439 would have to be carefully
considered. And when this is done, it will at
once be evident that CrPC has placed an
embargo against granting relief to an
accused, (couched by us in the negative), if
he is not in custody".
*-------*-------*-------*

"Furthermore, while Section 437
severally
curtails
the
power of
the
Magistrate to grant bail in context of the
commission
of
non-bailable
offences
punishable with death or imprisonment for
life, the two higher courts have only the
procedural requirement of giving notice of
the
bail
application
to
the
Public
Prosecutor, which requirement is also
ignorable if circumstances so demand. The
regimes regulating the powers of the
Magistrate on the one hand and the two
superior
courts
are
decidedly
and
intentionally not identical, but vitally and
drastically dissimilar. Indeed, the only
complicity that can be contemplated is the
conundrum of "committal of cases to the
Court of Session" because of a possible
hiatus created by CrPC."
*-------*-------*-------*

"What is to happen to the accused
in this interregnum; can his liberty be
jeopardised!
The
only
permissible
restriction to personal freedom, as a
universal legal norm, is the arrest or
detention of an accused for a reasonable
period of 24 hours. Thereafter, the accused
would be entitled to seek before a court his
enlargement on bail. In connection with
serious
offences,
Section
167
CrPC
contemplates that an accused may be
incarcerated, either in police or judicial
custody, for a maximum of 90 days if the
charge-sheet has not been filed. An accused
can and very often does remain bereft of
his personal liberty for as long as three
months and the law must enable him to
seek enlargement on bail in this period.
Since severe restrictions have been placed
on the powers of a Magistrate to grant bail,
in the case of an offence punishable by
death or for imprisonment for life, an
accused should be in a position to move the
courts meaningfully empowered to grant
him succour. It is inevitable that the
personal freedom of an individual would be
curtailed even before he can invoke the
appellate jurisdiction of the Sessions
Judge. The Constitution therefore requires
that a pragmatic, positive and facilitative
1298 INDIAN LAW REPORTS ALLAHABAD SERIES
interpretation be given to CrPC especially
with regard to the exercise of its original
jurisdiction by the Sessions Court. We are
unable to locate any provision in CrPC
which prohibits an accused from moving
the Court of Session for such a relief
except, theoretically, Section 193 which
also
only
prohibits
it
from
taking
cognizance of an offence as a court of
original jurisdiction. This embargo does
not prohibit the Court of Session from
adjudicating upon a plea for bail. It
appears to us that till the committal of case
to the Court of Session, Section 439 can be
invoked for the purpose of pleading for
bail. If administrative difficulties are
encountered, such as, where there are
several Additional Sessions Judges, they
can be overcome by enabling the accused
to move the Sessions Judge, or by further
empowering the Additional Sessions Judge
hearing other bail applications whether
post-committal or as the appellate court, to
also entertain bail applications at the precommittal stage. Since the Magistrate is
completely barred from granting bail to a
person accused even of an offence
punishable by death or imprisonment for
life, a superior court such as Court of
Session, should not be incapacitated from
considering a bail application especially
keeping in perspective that its powers are
comparatively unfettered under Section 439
CrPC."
*-------*-------*-------*

"There are no restrictions on the
High Court to entertain an application for
bail provided always the accused is in
custody, and this position obtains as soon
as the accused actually surrenders himself
to the Court."
*-------*-------*-------*

"The Sessions Court as well as
the High Court, both of which exercise
concurrent powers under Section 439,
would then have to venture to the merits of
the matter so as to decide whether the
applicant-appellant had shown sufficient
reason or grounds for being enlarged on
bail."

19. Thus, from the proposition as
noticed above, it is clear that both the High
Court and the Sessions Court exercise
concurrent powers under Section 439
Cr.P.C.. In the present case it is not
disputed that the applicant is in custody as
envisaged and explained in the case of
Sundeep Kumar Bafna (Supra) hence there
is no impediment for this Court to consider
the bail application and the bail application
filed before the Remand Magistrate was
before a Court having no jurisdiction to
entertain it, thus it will not create an
embargo on this Court to entertain and
consider the bail application on its merits
and in any case an application filed before
the Remand Magistrate is liable to be
ignored and it has been rendered otiose.

20. In the aforesaid circumstances,
this Court is of the opinion that this Court
can consider the bail application despite an
application having been moved before a
Court lacking jurisdiction. In view of the
aforesaid, the objection raised by the
learned A.G.A. is over ruled.

21. The Court has considered the bail
application on its own merits which has
been opposed by the learned A.G.A.,
however, looking into the facts and
circumstances, the material available on
record as well as the fact that the
accusation against the applicants are yet to
be tested in trial and only if the evidence
and material produced before the Court is
proved beyond reasonable doubt, can the
applicant be convicted.
3-5 All. Austin Paul Vs. State of U.P.
1299

22. In the aforesaid facts and
circumstances and taking a holistic view,
this Court without expressing any opinion
on the merits of the case is of the view that
the applicant is entitled to be released on
bail.

23. The Registry of this Court has
reported certain defects and in this regard
the High Court has laid down a guideline
vide
circular
dated
14.04.2020.
The
relevant portion thereof is being reproduced
hereinafter:-

"2. However, during the lock
down period, the requirement of an
affidavit/e-affidavit/scanned
Notary
Affidavit shall not be mandatory in the case
of
BAIL
APPLICATIONS
and
ANTICIPATORY BAIL APPLICATIONS. In
lieu thereof, Counsel shall have to submit,
in the e-filed petitions, the Adhar Card
Number, full details of the card holder like
name, parentage, age and address, as also
the mobile number linked to the adhar
card, of the person wanting to act as the
deponent in the matter along with a
declaration
of
that
applicant/petitioner/pairokar affirming the
correctness
of
the
disclosures
and
averments made in the application/petition.
In case of civil matters, a prayer for
dispensing with the requirement of filing an
affidavit may be made along with the
urgency application which shall also be
considered simultaneous with the issue of
urgency.

3. This waiver or relaxation is
subject to a proper affidavit being filed, in
hard copy, within a period of 15 days from
the date the lock down is lifted. No further
time shall be granted for the purpose. In
case a proper affidavit is not filed as
specified above, the said case shall stand
dismissed automatically and any order
passed therein, shall stand recalled,
without any reference to the Court. A
communication, in this regard shall be sent
by
the
Registry
to
the
Court(s)
below/authorities concerned, forthwith for
consequential action."

24. Hence this order passed by the
Court shall be subject to the compliance of
the conditions as prescribed in the circular
dated 14.04.2020.

25. Let the applicant Austin Paul
involved in Case Crime No. 207 of 2020,
under Sections 8/21 of The Narcotic Drugs
and Psychotropic Substances Act, 1985,
Police Station Vibhut Khand, District
Lucknow be released on bail on his
furnishing
a
personal
bond
to
the
satisfaction of the Jail Authorities where
said accused is imprisoned, provided the
accused applicant/s shall also undertake to
furnish two reliable sureties required by the
court concerned, within a period of 6 weeks
from the date of his/her actual release.

26. At the time of executing required
sureties the following conditions shall be
imposed in the interest of justice.

(i) The applicant shall file an
undertaking to the effect that he shall not
seek any adjournment on the dates 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 of the
Indian Penal Code.
1300 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii) In case, the applicant misuses
the liberty of bail during trial and in order
to secure his presence proclamation under
Section 82 Cr.P.C. is issued and the
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 of the Indian Penal Code.

(iv) The applicant shall remain
present, in person, before the trial court on
the dates fixed for (i) opening of the case,
(ii) framing of charge and (iii) recording of
statement under Section 313 Cr.P.C. 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 party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad.

(vi) The computer generated copy
of such order shall be self attested by the
counsel or the party concerned.

(vii)
The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.

27. And in case any application be
filed before the Remand Magistrate, the
same should be ignored and has been
rendered ocious.
----------
(2020)03-05ILR A1300
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.05.2020

BEFORE

THE HON'BLE CHANDRA DHARI SINGH, J.

Bail No. 2778 of 2020

Siddharth Varadarajan ...Applicant
Versus
State of U.P. & Anr. ...Opposite Party

Counsel for the Applicant:
Amrendra
Nath
Tripathi,
Surangama
Sharma

Counsel for the Opposite Party:
---

A.
Criminal
law-
Code
of
Criminal
Procedure,1973-Section
438
&
Indian
Penal Code, 1860-Sections 188, 505(2)-
application-allowed-FIR lodged by the
Police upon the applicant tweet relating to
religious sentiment on Covid-19 Cases
Spike which was also published by "The
Wire" on the large fair planned for
Ayodhya by Chief Minister on the occasion
of Ram Navami-notice was served upon
the applicant's wife directing the applicant
to appear in Ayodhya from Delhi in the
lockdown-reasonable
apprehension
of
being arrested when another notice was
was served and even chargesheet also
submitted.

While granting bail, the court has to keep in
mind the nature of accusations, evidence, the
severity
of
the
punishment,character
and
circumastances,
reasonable
possibility
of
securing the presence fo accused at trial,
reasonable apprehension of the witnesses being
tampered with, the larger interests of the
public/state and other similar considerations

The application is allowed. (E-6)

List of Cases Cited:-

1. Siddharam Satlingappa Mhetre Vs. St. Of
Mah. (2011) 1 SCC 694

2. Gurbaksh Singh Sibbia Vs. St. Of Punj. (1980)
2 SCC 656