# Mohd. Irshad v. Sate of U.P

- **Citation:** (2020) 6 ILRA 1218
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-04
- **Case number:** Bail No. 7115 of 2019
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-irshad-v-sate-of-u-p-45762
- **Pages:** 11

## Headnote

(A) Criminal law - Narcotic Drugs and
Psychotropic Substances Act, 1985 -
Sections 8 - Prohibitions of certain
operations - Section 21 - Punishment for
contravention
in
relation
to
manufactured drugs and preparations -
Section 50 - Conditios under which
search of persons shall be conducted -
Code
of
criminal
procedure,1973
-
Section 50 - Person arrested to be
informed of grounds of arrest and right
to bail - applicant guilty of the offence -
not fit case for grant of bail.

(B) Criminal law - Code of criminal
procedure,1973 - Section 439 - Special
powers of high court or court of session
regarding bail - Narcotic Drugs and
Psychotropic Substances Act, 1985 -
Section 37 - offences to be cognizable
and non-bailable - exercise of power to
grant bail is not only subject to the
limitations contained under Section 439
of the CrPC, but is also subject to the
limitation placed by Section 37 which
commences with non-obstante clause -
(i)
prosecution
must
be
given
an
opportunity to oppose the application
(ii) 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 -24

Applicant had been arrested - morphine
weighing one kilogram and ten grams
recovered from the bag which the applicant
was carrying - not following the provisions of
Section 50 (1) of the Act of 1985

HELD:- The Court is of the view that there
has been compliance of the provisions of
Section 50 (1) of the Act of 1985, the sample
was duly taken, lack of independent witnesses
would not vitiate the recovery and arrest of
the
applicant
and
merely
because
the
applicant has no criminal history, would not
entitle him automatically for grant of bail.(Para
- 27)

Bail application rejected.(E-7)

List of Cases Cited:-

## Text

1218 INDIAN LAW REPORTS ALLAHABAD SERIES
utilized for the purpose of election of four
elected members of the Governing
Council.

It is expected that the Interim
Committee constituted by this order of the
Court shall be extended all cooperation by
the existing staff of the Society and the
office of the Deputy Registrar. The
election as aforesaid, shall be held within
a maximum period of six months under
the guidance of this Interim Committee
which shall hand over charge to the newly
elected office bearers soon thereafter.

The Registry of this Court shall
inform about the order passed today by
this Court to the Chairman and Members
of the Interim Committee appointed by
this Court as aforesaid along with a copy
of this order.
----------
(2020)06ILR A1218
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.06.2020

BEFORE

THE HON'BLE ABDUL MOIN, J.

Bail No. 7115 of 2019

Mohd. Irshad ...Applicant
Versus
Sate of U.P. ...Opposite Party

Counsel for the Applicant:
Arun Sinha

Counsel for the Opposite Parties:
G.A.

(A) Criminal law - Narcotic Drugs and
Psychotropic Substances Act, 1985 -
Sections 8 - Prohibitions of certain
operations - Section 21 - Punishment for
contravention
in
relation
to
manufactured drugs and preparations -
Section 50 - Conditios under which
search of persons shall be conducted -
Code
of
criminal
procedure,1973
-
Section 50 - Person arrested to be
informed of grounds of arrest and right
to bail - applicant guilty of the offence -
not fit case for grant of bail.

(B) Criminal law - Code of criminal
procedure,1973 - Section 439 - Special
powers of high court or court of session
regarding bail - Narcotic Drugs and
Psychotropic Substances Act, 1985 -
Section 37 - offences to be cognizable
and non-bailable - exercise of power to
grant bail is not only subject to the
limitations contained under Section 439
of the CrPC, but is also subject to the
limitation placed by Section 37 which
commences with non-obstante clause -
(i)
prosecution
must
be
given
an
opportunity to oppose the application
(ii) 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 -24

Applicant had been arrested - morphine
weighing one kilogram and ten grams
recovered from the bag which the applicant
was carrying - not following the provisions of
Section 50 (1) of the Act of 1985

HELD:- The Court is of the view that there
has been compliance of the provisions of
Section 50 (1) of the Act of 1985, the sample
was duly taken, lack of independent witnesses
would not vitiate the recovery and arrest of
the
applicant
and
merely
because
the
applicant has no criminal history, would not
entitle him automatically for grant of bail.(Para
- 27)

Bail application rejected.(E-7)

List of Cases Cited:-

1. St. of Raj. Vs Parmanand & anr. , 2014 (2)
SCC (Crl.) 563

2. S.K. Raju @ Abdul Haque @ Jagga Vs St. of
W.B. , 2019 (1) SCC (Crl.) 371
6 All. Mohd. Irshad Vs. State of U.P. 1219
3. Vijaysinh Chandubha Jadeja Vs St. of Guj.,
(2011) 1 SCC (Crl.) 497

4. Namdi Francis Nwazor Vs U.O.I. & ors..
1998 SCC (Crl.) 1516

5. Ajmer Singh Vs St. of Hary., (2010) 2 SCC
(Crl.) 475

6. Major Singh Vs St. of U.P. , 2005 Cri.LJ
1001

7. St. of Hary. Vs Jarnail Singh & ors. , 2004
SCC (Crl.) 1571

8. Ravindran @ John Vs Suptd. of Customs ,
(2007) 3 SCC (Crl.) 189

9. St. of Punj. Vs Baldev Singh , (1999) 6 SCC
172.

10. St. of Karela Vs Rajesh , (2020) SCC
Online SC 81.

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard Sri Arun Sinha, learned
counsel for the applicant, and Sri Rao
Narendra
Singh,
learned
Additional
Government Advocate for the State
through video conferencing in terms of
orders passed by Hon'ble Chief Justice
taking into consideration COVID-19
situation.

2. Present bail application has been
filed by the applicant Mohd. Irshad, who
is involved in Case Crime No.75 of 2019
registered
under
the
provisions
of
Sections 8 and 21 of the Narcotic Drugs
and Psychotropic Substances Act, 1985
(hereinafter referred to as the Act of
1985), Police Station Masauli, District
Barabanki.

3. From perusal of the first
information report dated 24.02.2019 it
comes out that on 24.02.2019 the police
party noticed two persons moving in
suspicious
circumstances,
who
upon
seeing the police personnel, tried to run
away. The police personnel managed to
catch hold of one person namely the
applicant while the other person managed
to escape. On being arrested, the said
person disclosed his name as Mohd.
Irshad i.e. the applicant. Upon being
asked as to why he tried to run away, the
applicant replied that he is carrying
morphine in a bag and the person who ran
away was his friend/elder brother Mohd.
Junaid. The police personnel informed the
applicant that he has to be searched by a
gazetted officer or a magistrate under the
provisions of Section 50 of the Criminal
Procedure Code (as indicated in the first
information report) to which the applicant
informed that as he is carrying morphine,
he does not wish to be searched by any
other person and that the police personnel
may themselves search the applicant.
Upon such consent being given by the
applicant, the Station Officer searched the
applicant and in the bag being carried by
the applicant, it was noticed that a
polythene
was
kept.
The
applicant
informed about the contents of the
polythene
as
morphine.
The
said
morphine was weighed in the weighing
scale by the police personnel from which
it came out that the weight of morphine
was one kilogram and ten grams, being
brown in colour which was sealed. The
applicant was also arrested and the
witnesses were said to be the police
personnel inasmuch as despite various
persons being present none came forward
to be a witness on account of not being
willing to be involved. The applicant is
said to be in jail since 24.02.2019.

4. Sri Arun Sinha, learned counsel
for the applicant, on the basis of
1220 INDIAN LAW REPORTS ALLAHABAD SERIES
averments
contained
in
the
bail
application argued that the provision of
Section 50 (1) of the Act of 1985 was not
complied with despite a personal search
being carried out which is the mandatory
requirement and in the absence of the
same, the entire arrest and recovery
becomes vitiated in the eyes of law and
thus the applicant deserves to be released
on bail. In this regard, Sri Sinha has
placed
reliance
on
the
following
judgments:-

(i) 2014 (2) SCC (Crl.) 563 -
State of Rajasthan vs. Parmanand and
another;

(ii) 2019 (1) SCC (Crl.) 371 -
S.K. Raju alias Abdul Haque alias
Jagga vs. State of West Bengal;

(iii) (2011) 1 SCC (Crl.) 497 -
Vijaysinh Chandubha Jadeja vs. State
of Gujarat, and

(iv) 1998 SCC (Crl.) 1516 -
Namdi Francis Nwazor vs. Union of
India and another.

5. Sri Sinha further argued that no
sample was drawn from the article being
carried by the applicant which was a
mandatory requirement and also there
were no independent witnesses to the
seizure of the morphine and thus the same
vitiates the entire arrest and recovery. It is
also argued that the applicant does not
have any criminal history and thus
deserves to be released on bail. No other
ground has been argued.

6. On the ground of Section 50 (1)
of the Act of 1985 having been violated at
the time of arrest, much emphasis has
been placed on the judgments of Hon'ble
Apex Court in the cases of Parmanand
(supra),
S.K.
Raju
(supra)
and
Vijaysinh Chandubha Jadeja (supra) to
contend that even if for the sake of
argument the applicant gave his consent
for being searched by the police personnel
yet the mandatory requirement of Section
50 (1) of the Act of 1985 is that the
applicant should have been informed that
it is his right to be searched by a gazetted
officer or a magistrate and in the absence
of
police
personnel
informing
the
applicant of such right, the arrest and
recovery of morphine are vitiated in the
eyes of law.

7. On the other hand, Sri Rao
Narendra
Singh,
learned
Additional
Government Advocate, on the basis of
averments contained in the counter
affidavit has argued that the applicant was
arrested from a public place. The
applicant had been given an option of
being searched by either a gazetted officer
or by a magistrate under the provisions of
Section 50 (1) of the Act of 1985 to which
he submitted that he wished to be
searched by the police party itself and
thus there was consent of the applicant for
being searched not by a gazetted officer
or the magistrate but by the police
personnel themselves. It is thus contended
that once the applicant was specifically
informed about his right under Section 50
(1) of the Act of 1985 and he waived off
his right then at this stage the applicant
cannot be allowed to argue that the
mandatory provisions of Section 50 (1) of
the Act of 1985 not having been complied
with, the same would vitiate the arrest and
recovery of the morphine. In this regard,
Sri Rao has placed reliance on the
following judgments:-

(i) (2010) 2 SCC (Crl.) 475 -
Ajmer Singh vs. State of Haryana;

(ii) 2005 Cri.LJ 1001 - Major
Singh
vs.
State
of
U.P.;
6 All. Mohd. Irshad Vs. State of U.P. 1221

(iii) 2004 SCC (Crl.) 1571 -
State of Haryana vs. Jarnail Singh and
others, and

(iv) (2007) 3 SCC (Crl.) 189 -
Ravindran
alias
John
vs.
Superintendent of Customs

8. Heard learned counsel for the
parties and perused the records. From
perusal of the first information report, it
comes out that the applicant had been
arrested and morphine weighing one
kilogram and ten grams was also
recovered from the bag which the
applicant
was
carrying.
The
main
emphasis by the learned counsel for the
applicant is upon not following the
provisions of Section 50 (1) of the Act of
1985. For the sake of convenience,
Section 50 of the Act of 1985 is
reproduced below:-

"50. Conditions under which
search of persons shall be conducted.-

(1) When any officer duly
authorised under section 42 is about to
search any person under the provisions of
section 41, section 42 or section 43, he
shall, if such person so requires, take such
person without unnecessary delay to the
nearest Gazetted Officer of any of the
departments mentioned in section 42 or to
the nearest Magistrate.

(2) If such requisition is made,
the officer may detain the person until he
can bring him before the Gazetted Officer
or the Magistrate referred to in subsection (1).

(3) The Gazetted Officer or the
Magistrate before whom any such person
is brought shall, if he sees no reasonable
ground for search, forthwith discharge the
person but otherwise shall direct that
search be made.

(4) No female shall be searched
by anyone excepting a female.

(5)
When
an
officer
duly
authorised under section 42 has reason to
believe that it is not possible to take the
person to be searched to the nearest
Gazetted Officer or Magistrate without
the possibility of the person to be
searched parting with possession of any
narcotic drug or psychotropic substance,
or controlled substance or article or
document, he may, instead of taking such
person to the nearest Gazetted Officer or
Magistrate, proceed to search the person
as provided under section 100 of the Code
of Criminal Procedure, 1973 (2 of 1974).

(6) After a search is conducted
under sub-section (5), the officer shall
record the reasons for such belief which
necessitated such search and within
seventy-two hours send a copy thereof to
his immediate official superior."

9. Section 50 (1) of the Act of 1985
has been considered by a Constitution
Bench of the Apex Court in the case of
State of Punjab vs. Baldev Singh -
(1999) 6 SCC 172. The Apex Court has
concluded regarding the provisions of
Section 50 (1) of the Act of 1985 as
under:-

"(1) That when an empowered
officer or a duly authorised officer acting
on prior information is about to search a
person, it is imperative for him to inform
the person concerned of his right under
sub-section (1) of Section 50 of being
taken to the nearest gazetted officer or the
nearest Magistrate for making the search.
However, such information may not
necessarily be in writing.

(2) That failure to inform the
person concerned about the existence of
his right to be searched before a gazetted
1222 INDIAN LAW REPORTS ALLAHABAD SERIES
officer or a Magistrate would cause
prejudice to an accused.

(3) That a search made by an
empowered officer, on prior information,
without informing the person of his right
that if he so requires, he shall be taken
before a gazetted officer or a Magistrate
for search and in case he so opts, failure
to conduct his search before a gazetted
officer or a Magistrate, may not vitiate
the trial but would render the recovery of
the illicit article suspect and vitiate the
conviction and sentence of an accused,
where the conviction has been recorded
only on the basis of the possession of the
illicit article, recovered from his person,
during a search conducted in violation of
the provisions of Section 50 of the Act."

Subsequently,
another
Constitution Bench of the Apex Court in
the case of Vijaysinh Chandubha
Jadeja (supra) after considering the
judgment of Baldev Singh (supra) has
held as under:-

"29. In view of the foregoing
discussion, we are of the firm opinion that
the object with which right under Section
50(1) of the NDPS Act, by way of a
safeguard, has been conferred on the
suspect, viz. to check the misuse of power,
to avoid harm to innocent persons and to
minimise the allegations of planting or
foisting of false cases by the law
enforcement
agencies,
it
would
be
imperative on the part of the empowered
officer to apprise the person intended to
be searched of his right to be searched
before a gazetted officer or a Magistrate.
We have no hesitation in holding that in
so far as the obligation of the authorised
officer under sub-section (1) of Section 50
of the NDPS Act is concerned, it is
mandatory
and
requires
a
strict
compliance. Failure to comply with the
provision would render the recovery of
the illicit article suspect and vitiate the
conviction if the same is recorded only on
the basis of the recovery of the illicit
article from the person of the accused
during such search. Thereafter, the
suspect may or may not choose to
exercise the right provided to him under
the said provision."

10.

From
perusal
of
two
Constitution Bench judgments of the
Apex Court, it comes out that the object
of the right under Section 50 (1) of the
Act of 1985 has been conferred on the
suspect by way of a safeguard to check
the misuse of power at the hands of the
authorities and to avoid harm to innocent
persons and to minimise the allegations of
planting or foisting of false cases by the
law enforcement agencies and thus it has
been made mandatory on the part of the
empowered officer to apprise the person
intended to be searched of his right to be
searched before a gazetted officer or a
magistrate. Failure to comply with the
provisions of Section 50 (1) of the Act of
1985 would render the recovery of the
illicit article suspect and vitiate the
conviction if the same is recorded only on
the basis of the recovery of the illicit
article from the person of the accused
during the search.

11. Being armed with the aforesaid
interpretation,
as
given
by
two
Constitution Benches of the Apex Court,
this Court proceeds to consider as to
whether provisions of Section 50 (1) of
the Act of 1985 were followed in the
present case.

12. From perusal of the first
information report, it comes out that as
the morphine was admitted of being
carried by the applicant in a bag, as such,
6 All. Mohd. Irshad Vs. State of U.P. 1223
the applicant was informed that in terms
of Section 50, he should get himself
searched by a gazetted officer or a
magistrate
to
which
the
applicant
consented for having himself searched by
the police party itself. This would be
apparent from a persual of the following
words in the first information report:-

"पकड़े गए व्यब्लक्त से पूछने पर
अपना नाि िोहम्मि इरशाि पुत्र िोहम्मि
नसरुद्दीन तनिासी चौखंडी थाना सििरगंज
बाराबंकी बिाया। भागने का कारण पूछने पर
बिाया तक साहब िेरे हाथ िें जो थैला है इसिें
ekjQhuहै। इसी कारण डरकर भागा था िेरे
साथ िेरा िोस्त िेरा बड़ा भाई िोहम्मि tquSn
पुत्र िोहम्मि नसरुद्दीन भी था जो डर कर भाग
गया। पकड़े गए व्यब्लक्त us बिाया तक आप
बिा रहे हो तक िेरे पास झोले िें ekjQhu रखा
है िो आपको अपनी िलाशी तकसी राजपतत्रि
अतधकारी या ितजस्टरेि के सिक्ष अपनी
िलाशी चलकर अंिगगि धारा 50 सीआरपीसी
िेनी होगी। िो बिाया तक साहब जब आप
पकड़ ही तलए हैं िो आप ही िेरी िलाशी ले ले
िेरे पास ekjQhu है िो ekjQhuही रहेगी। िुझे
तकसी और के पास िलाशी िेकर अपने तिरुद्ध
और अतधक सबूि एकत्र नहीं करना है।"

Thus, the essential condition of
Section 50 (1) of the Act of 1985 of the
person being arrested being informed of
having a right of being searched by the
gazetted officer or magistrate stood
satisfied when the police personnel
informed the applicant and the applicant
waived off his right and allowed the
police
personnel
to
search
him.
Interestingly in the bail application there
is no averment by the applicant of the
police personnel not having informed the
applicant of having the right of being
searched by a gazetted officer or a
magistrate in terms of Section 50 (1) of
the Act of 1985 rather in paragraph 14 of
the bail application, it has been contended
that there has been non-compliance of
mandatory provisions of Section 50 of the
Act of 1985 as the applicant was not
taken to the nearest gazetted officer for
his search nor the gazetted officer was
called for by the complainant for search.
From perusal of the aforesaid, it thus
clearly comes out that the applicant was
informed about his right under the
provisions of Section 50 (1) of the Act of
1985 though indicated as Cr.P.C in the
F.I.R which provided for a search to be
made by a gazetted officer or a magistrate
which was specifically waived off by the
applicant and thereafter the search was
conducted by the Station Officer to which
also there is no denial in the bail
application of such information not
having been given to the applicant and
consequently the Court is of the view that
the mandatory requirement of Section 50
(1) of the Act of 1985 stood satisfied.

13. Another aspect of the matter is that it
is admitted that the recovery of drugs was
made from the bag which the applicant was
carrying and not from his person. The Apex
Court in the case of Ravindran alias John
(supra) has held that if any drug was
recovered from the personal search of the
accused, he could take the plea of Section 50
of the Act of 1985 to challenge his personal
search. However, where the drug is recovered
not from the person of the accused but from a
separate bag, then Section 50 (1) of the Act of
1985 shall not be applicable. For the sake of
convenience, the relevant observations of the
Apex Court in the case of Ravindran alias
John (supra) are reproduced below:-

"11. In our view this question
does not survive for our consideration
because we have earlier held that Section
1224 INDIAN LAW REPORTS ALLAHABAD SERIES
50 was not attracted to the facts of this
case. If any drug was recovered from the
personal search of the appellant as
explained in Pawan Kumar's case, the
appellant could advance this argument to
challenge his personal search. That not
being the case, the submission must be
rejected. An argument was advanced
before us that if the search is found to be
illegal that is fatal to the case of the
prosecution. Apart from the fact that this
question does not arise in the instant
case, it cannot be said as a general
principle of law that the illegality of the
seizure would in all cases prove fatal to
the case of the prosecution. As held by
this Court in 2006 (9) SCALE 644 Ritesh
Chakarvarti Versus State of Madhya
Pradesh although the effect of the illegal
search may not have any direct effect on
the prosecution case, it would all the
same have a bearing on the appreciation
of evidence of the official witnesses and
other materials depending on the facts of
each case."

However, the aforesaid question
may not detain this Court as it has not
been disputed by learned Additional
Government Advocate that the personal
search of the applicant was not carried out
and even otherwise, this Court has held
that the condition of Section 50 (1) of the
Act, 1985 stood complied with.

14. So far as the judgment in the
case of Parmanand (supra) is concerned
over which strong reliance has been
placed by learned counsel for the
applicant, the same was a case in which
two persons namely Parmanand and
Surajmal had been arrested. The SubInspector leading the police party gave a
written notice to them informing them
about their right under the provisions of
Section 50 of the Act of 1985. Upon this,
accused Surajmal gave consent in writing
in Hindi for himself and for Parmanand
and stated that they were ready to get
themselves searched by the Sub-Inspector
in the presence of Superintendent and he
also put his thumb impression and
thereafter search was carried out from
which opium was found and both
Parmanand and Surajmal were charged of
the offence under the Act of 1985. Both
the accused were convicted by the trial
court and upon appeal the High Court
acquitted the accused by holding that
there was no compliance of Section 50 of
the Act of 1985. Upon an appeal being
filed by the State, the Apex Court after
going through the records, found that the
notice given by the police personnel of
informing the accused persons of their
right under Section 50 of the Act of 1985
had only been signed by one accused
namely Surajmal and the same was not
signed by accused Parmanand. There was
also nothing on record to show that
Parmanand had given his independent
consent.
The
Apex
Court
after
considering
the
Constitution
Bench
judgment of Baldev Singh (supra) was
of the view that once Parmanand was not
informed about his right of being
searched under Section 50 of the Act of
1985 then merely because the written
communication was given to one of the
accused who signed on behalf of
Parmanand the same would not be
considered to be sufficient compliance of
Section 50 of the Act of 1985.

15. The aforesaid judgment is
clearly distinguishable inasmuch as in the
instant case there is no denial in the bail
application that the applicant was not
informed of having a right of being
searched under Section 50 of the Act of
1985 by a gazetted officer or magistrate
6 All. Mohd. Irshad Vs. State of U.P. 1225
consequently
the
judgment
of
Parmanand
(supra)
will
have
no
applicability in the facts of the present
case.

16. As regards the judgment of
Vijaysin Chandubha Jadeja (supra),
the same only indicates about the
mandatory nature of Section 50 of the Act
of 1985 which this Court has already held
had been followed in the case of the
applicant.

17. As regards the case of S.K. Raju
alias Abdul Haque alias Jagga (supra),
the same would also not be applicable in
the facts of the present case as in the said
case the Apex Court held that where the
search of the accused person is also
carried out then provisions of Section 50
of the Act of 1985 would be attracted and
that there had to be compliance of the
requirement of Section 50(1) of the Act of
1985.

18. As regards the case of Namdi
Francis Nwazor (supra), the same arises
out of Section 50 of the Act of 1985
wherein the search of a person and search
of
the
person's
luggage
has
been
considered separately. In the instant case,
as it was not disputed by the learned
Additional Government Advocate that the
search of the person of applicant was
made
consequently
the
Court
has
proceeded on the ground that Section 50
of the Act of 1985 was applicable with
regard to the search of the applicant
including his person and luggage. Thus,
the instant judgment would have no
applicability in the facts of the present
case.

19. As regards the second ground
taken by learned counsel for the applicant
of no sample being drawn of the drug that
was seized, a specific plea has been taken
in paragraph 32 of the bail application to
the said effect. However, in paragraphs 5
and 30 of the counter affidavit, it has been
contended that of the recovered goods, a
sample had been taken and had been sent
to laboratory which report mentions the
seized goods as being heroine. Copy of
the said report has been brought on record
as Annexure CA-2 to the counter
affidavit. Incidentally paragraphs 5 and
30 of the counter affidavit which
mentioned about the sample being taken
and a report having been taken which
reveals the sample as heroine has not
been specifically denied in paragraph 5 of
the
rejoinder
affidavit.
Further,
in
paragraph 21 of the rejoinder affidavit
wherein para 30 of the counter affidavit
has been replied, it is admitted that a
sample seal was prepared. Thus, the Court
has no option but to hold that a sample
had been taken which revealed the seized
goods from the applicant as heroine.

20. As regards the ground of there
being no independent witness(s) to the
arrest and recovery of drugs, learned
Additional Government Advocate has
placed reliance on the judgment of Apex
Court in the case of Ajmer Singh (supra)
wherein the Apex Court has held that it
cannot be possible to find independent
witnesses at all places at all time. The
obligation to take public witnesses is not
absolute and if after making efforts, the
police officer is not able to get public
witnesses to associate with the raid or
arrest of the culprit, the arrest and the
recovery made would not be necessarily
vitiated. For the sake of convenience, the
relevant observations of the Apex Court
in the case of Ajmer Singh (supra) are
reproduced below:-
1226 INDIAN LAW REPORTS ALLAHABAD SERIES

"20. We cannot forget that it
may not be possible to find independent
witness at all places, at all times. The
obligation to take public witnesses is not
absolute. If after making efforts which the
court considered in the circumstances of
the case reasonable, the police officer is
not able to get public witnesses to
associate with the raid or arrest of the
culprit, the arrest and the recovery made
would not be necessarily vitiated. The
court will have to appreciate the relevant
evidence and will have to determine
whether the evidence of the police officer
was believable after taking due care and
caution in evaluating their evidence."

21. From perusal of the judgment
in the case of Ajmer Singh (supra) and
a perusal of the first information report
wherein it has been recorded that
despite a few persons of the public
having been asked to become witness
they all declined, goes to show that
efforts were made by
the police
personnel to find witnesses but they
declined and thus lack of independent
witnesses, as in this case, in view of this
Court and taking into consideration the
law laid down by the Apex Court in the
case of Ajmer Singh (supra), would
not vitiate the arrest and recovery of
drugs from the possession of the
applicant.

22. As regard the ground taken by
learned counsel for the applicant that the
applicant has got no criminal history,
suffice to state that in cases involving the
Act of 1985, prior to grant of bail the
Court would have to consider the
provisions of Section 37 of the Act of
1985. For the sake of convenience,
Section 37 of the Act of 1985 is
reproduced below:-

"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 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."(emphasis supplied)

23. The Apex Court has laid down
broad parameters to be followed while
considering the application for bail
moved by the accused involved in
offences under NDPS Act. In Union of
India Vs. Ram Samujh and Ors.
1999(9) SCC 429, it has been elaborated
as under:-

"7. It is to be borne in mind that
the aforesaid legislative mandate is
required to be adhered to and followed. It
should be borne in mind that in a murder
case, the accused commits murder of one
or two persons, while those persons who
6 All. Mohd. Irshad Vs. State of U.P. 1227
are dealing in narcotic drugs are
instrumental in causing death or in
inflicting death-blow to a number of
innocent
young
victims,
who
are
vulnerable; it causes deleterious effects
and a deadly impact on the society; they
are a hazard to the society; even if they
are
released
temporarily,
in
all
probability, they would continue their
nefarious activities of trafficking and/or
dealing
in
intoxicants
clandestinely.
Reason may be large stake and illegal
profit involved. This Court, dealing with
the contention with regard to punishment
under the NDPS Act, has succinctly
observed about the adverse effect of such
activities in Durand Didier v. Chief
Secy., Union Territory of Goa [(1990) 1
SCC 95)] as under:

24. With deep concern, we may
point out that the organised activities of
the underworld and the clandestine
smuggling
of
narcotic
drugs
and
psychotropic substances into this country
and illegal trafficking in such drugs and
substances have led to drug addiction
among a sizeable section of the public,
particularly the adolescents and students
of both sexes and the menace has
assumed
serious
and
alarming
proportions in the recent years. Therefore,
in order to effectively control and
eradicate this proliferating and booming
devastating menace, causing deleterious
effects and deadly impact on the society
as a whole, Parliament in its wisdom, has
made effective provisions by introducing
this Act 81 of 1985 specifying mandatory
minimum imprisonment and fine.

8. To check the menace of
dangerous drugs flooding the market,
Parliament has provided that the person
accused of offences under the NDPS Act
should not be released on bail during trial
unless the mandatory conditions provided
in Section 37, namely,

(i) there are reasonable grounds
for believing that the accused is not guilty
of such offence; and

(ii) that he is not likely to
commit any offence while on bail are
satisfied. The High Court has not given
any justifiable reason for not abiding by
the aforesaid mandate while ordering the
release of the respondent-accused on bail.
Instead of attempting to take a holistic
view of the harmful socio-economic
consequences and health hazards which
would accompany trafficking illegally in
dangerous
drugs,
the
court
should
implement the law in the spirit with which
Parliament, after due deliberation, has
amended."

24. 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 CrPC,
but is also subject to the limitation placed
by Section 37 which commences with
non-obstante 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.

25. The expression "reasonable
grounds" means something more than
prima facie grounds. It contemplates
substantial probable causes for believing
1228 INDIAN LAW REPORTS ALLAHABAD SERIES
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. A similar view has
been taken by the Apex Court in the case
of State of Karela Vs. Rajesh reported in
(2020) SCC Online SC 81.

26. Being armed with Section 37 of
the Act of 1985, the law as laid down by the
Apex Court in the case of Ram Samujh
(supra) and Durand Didier (supra), what
this Court finds is that prior to grant of bail
under the Act of 1985 the Court should be
satisfied that there are reasonable grounds
for believing that the accused is not guilty
of such offence and that he is not likely to
commit any offence while on bail. As per
the discussions made above, it is apparent
that only a technical plea has been raised on
behalf of the applicant to somehow or the
other make the seizure/recovery of drugs
and his arrest suspicious but the Court is
satisfied that the applicant is guilty of the
offence. In this view of the matter also the
Court does not deem the instant case as fit
for grant of bail.

27. Taking into consideration the
aforesaid discussions, the Court is of the
view that there has been compliance of the
provisions of Section 50 (1) of the Act of
1985, the sample was duly taken, lack of
independent witnesses would not vitiate the
recovery and arrest of the applicant and
merely because the applicant has no
criminal history, would not entitle him
automatically for grant of bail.

28. Accordingly, the bail application is
rejected. However, it is provided that none
of the observations made above would be
considered by the trial court in its trial
against the applicant and the trial would
proceed in accordance with law.
----------
(2020)06ILR A1228
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.06.2020

BEFORE

THE HON'BLE JASPREET SINGH, J.

Bail No. 2898 of 2020

Sagynbek Toktobolotov & Ors.
 ...Applicants
Versus
State of U.P. ...Opposite Party

Counsel for the Applicants:
Pranshu Agrawal, Sufiyan Mohammad

Counsel for the Opposite Parties:
G.A.

(A) Criminal law - Indian Penal Code,
1860 - Sections 188 , Section 3 of
Epidemic Disease Act, 1897, Section
12(3) of the Passport Act, 1967 and
Sections
3(2)
and
Section
3
(3)
Passports (Entry into India) Act, 1920
and Section 14/14-C of the Foreigners
Act, 1946 and Section 51 of the Disaster
Management Act, 2005

(B) Constitution of India - Article 21 -
heart and soul of the fundamental rights
as
enshrined
in
Part
III
of
the
Constitution - ''personal' before the word
''liberty' used in Article 21 - it is an antithesis of physical restrain or coercion -
basic right of an individual to be free
from restrictions or encroachment on his
person
 - unless and until extreme
circumstances are pointed out, it cannot
be considered that the parameters for
considering a bail application for a
national or a foreigner would be on a
different footing before the Court of law
- an application for bail cannot be