# Mohd. Hasnain v. State of U.P

- **Citation:** (2024) 12 ILRA 354
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-12
- **Case number:** Criminal Misc. Bail Application No. 3800 of 2024
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-hasnain-v-state-of-u-p-54530
- **Pages:** 4

## Headnote

Criminal Law - Narcotic Drugs and
Psychotropic Substances Act, 1985 -
Section 37(1)(b)(ii) - Constitution of
India, 1950 - Article 21 - Second bail
application
-
FIR
registered
on
22.11.2023
-
First
bail
application
rejected vide order dated 17.01.2024 -
Charge sheet filed on 23.02.2024 -
Charges framed on 07.08.2024 - Till date
only PW-1 examined - Plea of parity.
(Para 3)

Held, applicant languishing in jail since
22.11.2023, till date only single witness
examined that too when status of trial was
summoned - In one of case u/s 8/21, NDPS
Act, applicant has been acquitted - In
another case under same section of NDPS
Act, it was noticed that approximately one
and half years passed, till date trial has not
commenced - Criminal history of earlier
cases, in view of Judgment of Apex Court in
Rabi Prakash (infra), cannot come in way
of consideration for grant of bail and
stringent condition under charged section
should
not
given
weightage
over
fundamental rights guaranteed to accused
- Since, three similarly situated co-accused
persons granted bail, applicant cannot be
treated differently. (Para 13, 15)

Bail application allowed. (E-13)

List of Cases cited:

## Text

354 INDIAN LAW REPORTS ALLAHABAD SERIES
than dragging him in a criminal case,
continuance of prosecution would be
nothing but an abuse of the process of law
and will be a mental trauma to the
applicants, it becomes necessary for this
Court to invoke inherent powers under
Section 482 Cr.P.C. in present facts and
circumstances of his case.

116. Therefore, in view of above
discussion, this Court finds a good ground
for quashing the impugned charge-sheet,
cognizance/summoning order as well as
entire proceedings of the aforesaid case.

117. Accordingly, the charge sheet
dated 06.12.2022 and cognizance order
dated 9.12.2022 as well as the entire
proceedings of Case No.6501 of 2022
(State vs. Satveer Singh and others), arsing
out of Case Crime No.0949 of 2022, under
Sections 447, 420, 467, 468, 469, 471,
120B IPC and Section 28(1) of U.P. Urban
Planing & Development Act 1973, Police
Station-Izzat
Nagar,
District-Bareilly,
pending before the court of Chief Judicial
Magistrate, Bareilly are hereby quashed.

118. These applications under Section
482 Cr.P.C. are, accordingly, allowed.
There shall be no order as to costs.

119. A copy of this order be sent to the
lower court forthwith.
----------
(2024) 12 ILRA 354
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.12.2024

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Misc. Bail Application No. 3800 of 2024

Mohd. Hasnain ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Ravi Singh, Mohd. Jabir, Pranjal Krishna,
Suhaib Ashraf

Counsel for the Opposite Party:
G.A.

Criminal Law - Narcotic Drugs and
Psychotropic Substances Act, 1985 -
Section 37(1)(b)(ii) - Constitution of
India, 1950 - Article 21 - Second bail
application
-
FIR
registered
on
22.11.2023
-
First
bail
application
rejected vide order dated 17.01.2024 -
Charge sheet filed on 23.02.2024 -
Charges framed on 07.08.2024 - Till date
only PW-1 examined - Plea of parity.
(Para 3)

Held, applicant languishing in jail since
22.11.2023, till date only single witness
examined that too when status of trial was
summoned - In one of case u/s 8/21, NDPS
Act, applicant has been acquitted - In
another case under same section of NDPS
Act, it was noticed that approximately one
and half years passed, till date trial has not
commenced - Criminal history of earlier
cases, in view of Judgment of Apex Court in
Rabi Prakash (infra), cannot come in way
of consideration for grant of bail and
stringent condition under charged section
should
not
given
weightage
over
fundamental rights guaranteed to accused
- Since, three similarly situated co-accused
persons granted bail, applicant cannot be
treated differently. (Para 13, 15)

Bail application allowed. (E-13)

List of Cases cited:

1. Rabi Prakash Vs St. of Odisha, 2023 SCC
OnLine SC 1109, (Para 3, 4)

2. Satender Kumar Antil Vs Central Bureau of
Investigation & anr., (2022) 10 SCC 51, (Para
98)
12 All. Mohd. Hasnain Vs. State of U.P.
355
(Delivered by Hon'ble Karunesh Singh Pawar, J.)

1. Heard Shri Pranjal Krishna, learned
counsel for the applicant and learned
A.G.A for the respondent State.

2. This is the second bail application.
The first bail application of the applicant
was rejected vide order dated 17.01.2024
passed by this Court in Criminal Misc. Bail
Application No. 15322 of 2023.

3. Learned counsel for the applicant
while pressing the present second bail
application on fresh grounds submits that
the FIR was registered on 22.11.2023; first
bail application of the applicant was
rejected vide order dated 17.01.2024;
charge sheet was filed on 23.02.2024; after
the status report was called by this Court,
charges were framed on 07.08.2024,
however, till date only PW-1 could be
examined. The applicant is languishing in
jail since 22.11.2023 without any fault of
his own.

4. Learned counsel for the applicant
submits that first bail application was
rejected on the ground that apart from the
criminal history of other cases, the
applicant has a criminal history of two
cases under NDPS Act and therefore, the
satisfaction with regard to section 37 of
NDPS Act could not be recorded to the
extent that he will not commit the same
offence in future.

5. It has been further submitted that
so far as criminal history of two cases of
NDPS is concerned, in one case crime
No. 746/2011, under Section 8/21 of
NDPS Act, P.S. Badosarari, District
Barabanki,
the
applicant
has
been
acquitted and in the second case i.e. case
crime No. 305/2022, under Section 8/21
of NDPS Act, which was registered in the
year 2022, although, the applicant is on
bail, however, still, after expiry of two
and half years, even the trial has not
commenced.

6. It has been further submitted that
the delay in trial is on the part of the
prosecution. The applicant cannot be put
to suffer for this delay and therefore, with
regard to the conditions under Section
37(1)(b)(ii) of NDPS Act will not come
in the way of consideration of the
application of the applicant for grant of
bail. In support of his argument, he has
relied on the judgment of the Hon'ble
Supreme Court passed in the case of
"Rabi Prakash v. State of Odisha, 2023
SCC OnLine SC 1109". Emphasis is on
paragraphs 3 and 4.

7. Learned counsel for the applicant
further submits that the Apex Court in the
case
of
Rabi
Prakash
(supra)
after
considering the long period of incarceration
has held that "prolonged incarceration,
generally
militates
against
the
most
precious fundamental right guaranteed
under Article 21 of the Constitution and in
such a situation, the conditional liberty
must override the statutory embargo
created under Section 37(1)(b)(ii) of the
NDPS Act" and therefore, in this case also,
the applicant is liable to be granted bail.

8. It has been further submitted on
behalf of the applicant that co-accused
persons namely Mohd. Yusuf and Nurul
Hasan have been granted bail by the
learned Additional District and Sessions
Judge (NDSP Act), Barabanki. The bail
orders are on record as Annexure No. 7
collectively
to
the
bail
application.
Likewise,
another
co-accused
namely
Mohd. Rashid has also been granted bail by
356 INDIAN LAW REPORTS ALLAHABAD SERIES
the coordinate Bench of this Court vide
order dated 11.01.2024 passed in Criminal
Misc. Bail Application No. 344 of 2024.

9. Learned counsel for the applicant
further submits that on the basis of criminal
history of NDPS cases as well as in the
case crime No. 305/2022, the fundamental
rights guaranteed under Article 21 of the
Constitution cannot be ignored and they
shall not be affected by Section 37 of
NDPS Act as held by the Apex Court in the
judgment of Rabi Prakash (supra).

10. It has been further submitted on
behalf of the applicant that since number of
named accused persons have been granted
bail, therefore, the applicant should be
granted parity. In support of his contention,
he has relied on the judgment of the Apex
Court passed in the case of Satender
Kumar Antil Vs. Central Bureau of
Investigation and another, (2022) 10
SCC 51.

11. Perused the record.

12. The Apex Court in the case of
Rabi Prakash (supra) while considering the
prolonged
incarceration
vis-a-vis
conditions under Section 37(1)(b)(ii) of the
NDPS Act has held as under:-

"3. We are informed that the trial
has commenced but only 1 out of the 19
witnesses
has
been
examined.
The
conclusion of trial will, thus, take some
more time.

4.
As
regard
to
the
twin
conditions contained in Section 37 of the
NDPS Act, learned counsel for the
respondent - State has been duly heard.
Thus, the 1st condition stands complied
with. So far as the 2ndcondition re:
formation of opinion as to whether there
are reasonable grounds to believe that the
petitioner is not guilty, the same may not be
formed at this stage when he has already
spent more than three and a half years in
custody. The prolonged incarceration,
generally
militates
against
the
most
precious fundamental right guaranteed
under Article 21 of the Constitution and in
such a situation, the conditional liberty
must override the statutory embargo
created under Section37(1)(b)(ii) of the
NDPS Act."

13. In this case, the applicant is
languishing in jail since 22.11.2023 and till
date only single witness has been examined
that too when status of trial was summoned
by this Court. So far as case crime No.
746/2011, under Section 8/21 of NDPS Act
is concerned, the applicant has been
acquitted. In case crime No. 305/2022,
under Section 8/21 of NDPS Act this Court
has noticed that approximately one and half
years have passed, however, till date trial
has not commenced. Criminal history of
those cases, in view of the Judgment of the
Apex Court in the case of Rabi Prakash
(supra), cannot come in the way of
consideration of the application of the
applicant for grant of bail and stringent
condition under Section 37(1)(b)(ii) NDPS
Act should not be given weightage over the
fundamental rights guaranteed to the
accused
under
Article
21
of
the
Constitution of India.

14. Perusal of the record further
shows that three similarly situated coaccused persons have been granted bail.
The Apex Court in the case of Satender
Kumar Antil (supra) (paragraph 98) has
held as under:-

"98. Uniformity and certainty in
the decisions of the court are the
12 All. Anupam Shukla @ Anupama Tripathi Vs. State of U.P.
357
foundations
of
judicial
dispensation.
Persons accused with same offence shall
never be treated differently either by the
same court or by the same or different
courts. Such an action though by an
exercise of discretion despite being a
judicial one would be a grave affront to
Articles 14 and 15 of the Constitution of
India."

15. In view of the law laid down by
the Apex Court in the case of Rabi Prakash
(supra), the twin condition under Section
37(1)(b)(ii) of the NDPS Act cannot come
in
the
way
of
fundamental
rights
guaranteed to the accused under Article 21
of the Constitution of India considering his
long incarceration and slow progress of the
trial. Likewise, as held by the Apex Court
in the case of Satender Kumar Antil
(supra), since three co-accused persons
have been granted bail by this case, the
applicant cannot be treated differently.

16. In view of the discussions made
herein above, the bail application of the
applicant is allowed.

17. Let the applicant, Mohd. Hasnain,
involved in Case Crime/FIR No. 478/2023,
under Sections 8/21C/29/60(3) of NDPS Act,
Police Station - Jaidpur, District - Barabanki,
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 with the following conditions
which are being imposed in the interest of
justice:-

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

(ii)
The
applicant
will
not
pressurize/
intimidate
the
prosecution
witness.

(iii) The applicant shall not directly
or indirectly make any 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 or to any
police officer or tamper with the evidence.

(iv) 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.

(v) 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.

(vi) 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.
----------
(2024) 12 ILRA 357
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.12.2024

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Criminal Misc. Bail Application No. 38698 of
2024

Anupam Shukla @ Anupama Tripathi
 ...Applicant
Versus
State of U.P. ...Opposite Party