# Om Prakash Verma v. State of U.P

- **Citation:** (2022) 3 ILRA 65
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-11
- **Case number:** Criminal Misc. Bail Application No. 9660 of 2021
- **Bench:** Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-verma-v-state-of-u-p-48223
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 439 - The
Narcotics
Drugs
And
Psychotropic
Substances Act,1985-Section 8/20-bailrecovery of 1 quintal 3 kg290 grams ganja
from 19 packets-Representative samples
not drawn from all the 19 packets-there is
non-compliance of procedure given in
clause 2.4 of the Standing order No. 1 of
1989 which has statutory force and
therefore, accused may not be held guilty
after trial-Bail allowed with conditions.
(Para 1 to 14)

B. The guidelines such as those present in
the Standing Order can not be blatantly
flouted
and
substantial
compliance
therewith must be insisted upon for so
that sanctity of physical evidence in such
cases remains intact. In this case, the
conduct of the prosecution of not drawing
individual
sample
from
each
packet
recovered
will
be
considered
to
be
violation of Standing Order aforesaid.
(Para 5 to 11)

The application is allowed. (E-6)

List of Cases cited:

## Text

3 All. Om Prakash Verma Vs. State of U.P.
65
the consequences to the society and
economy of Country. Hence, for moneylaunderers "jail is the rule and bail is an
exception".

29. The arguments tendered by the
counsel for the applicant can be agitated at
the stage of regular bail but not under
Section 438 Cr.P.C.

30. On prima facie reading of the
material placed on record and considering
the parameters of Section 45(1) PMLA as
well as the gravity of the alleged offences,
it cannot be held that the applicant was not
guilty of the alleged offences or that he was
not likely to commit any such offence
while
on
bail
and
accordingly
the
anticipatory bail application is dismissed.

31. However, it is made clear that the
observations
made
hereinabove
are
exclusively
for
deciding
the
instant
anticipatory bail application and shall not
affect the trial or deciding the regular bail
application.
----------
(2022)03ILR A65
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 11.03.2022

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Bail Application No. 9660 of 2021

Om Prakash Verma ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Karunakar Srivastava

Counsel for the Opposite Party:
G.A.
A. Criminal Law - Code of Criminal
Procedure,1973 - Section 439 - The
Narcotics
Drugs
And
Psychotropic
Substances Act,1985-Section 8/20-bailrecovery of 1 quintal 3 kg290 grams ganja
from 19 packets-Representative samples
not drawn from all the 19 packets-there is
non-compliance of procedure given in
clause 2.4 of the Standing order No. 1 of
1989 which has statutory force and
therefore, accused may not be held guilty
after trial-Bail allowed with conditions.
(Para 1 to 14)

B. The guidelines such as those present in
the Standing Order can not be blatantly
flouted
and
substantial
compliance
therewith must be insisted upon for so
that sanctity of physical evidence in such
cases remains intact. In this case, the
conduct of the prosecution of not drawing
individual
sample
from
each
packet
recovered
will
be
considered
to
be
violation of Standing Order aforesaid.
(Para 5 to 11)

The application is allowed. (E-6)

List of Cases cited:

1. St. of Raj. Vs Tara Singh (2011) 11 SCC 559

2. Aman Fidel Chris Vs Narcotics Control Bureau,
CRLA No. 1027 of 2015 & Crl. M.B. 511 of 2019
& Crl. M.A. 1660 of 2020

3. Noor Aga Vs St. of Punj.(2008) 3 JIC 640 SC

4. St. of Ker. & ors. Vs Kurian Abraham (P) Ltd.
& anr. (2008) 3 SCC 582

5. U.O.I. Vs Azadi Bachao Andolan (2004) 10
SCC 1

6. U.O.I. Vs Shiv Shankar Keshari (2007) 7 SCC
798

(Delivered by Hon'ble Krishan Pahal, J.)

1.

Heard
Sri
Sri
Karunakar
Srivastava,
learned
counsel
for
the
66 INDIAN LAW REPORTS ALLAHABAD SERIES
applicant, learned AGA for the State and
perused the material placed on record.

2. Applicant seeks bail in Case Crime
No. 0205 of 2021, under Sections 8/20 of The
Narcotic Drugs And Psychotropic Substances
Act, 1985, Police Station- Utraula, District
Balrampur, during the pendency of trial.

3. As per prosecution story, 1 quintal 3
Kg 290 grams of ganja and 38 packets of
cigarette rolling paper from a unnumbered
Tata Tiago car along with one CMP, .303
bore, one live cartridge of .303 bore are said
to have been recovered from the possession
of two co-accused persons, namely, the
applicant and Ram Prakash Verma. Rs.340
cash was recovered from the possession of
the applicant and Rs.25,000/- cash was
recovered from the possession of co-accused
Ram Prakash Verma and two accused
persons are stated to have run away from the
scene of recovery after seeing the raiding
party.

4. Learned counsel for the applicant
has argued that in all the said contraband
was recovered from 19 packets and one
polythene amounting to total of 1 quintal 3
Kg and 290 grams and only one sample has
been taken from the said contraband. This is
a clear violation of Clause 2.4 of the
Standing Order No.1 of 1989.

5. Learned counsel for the applicant
has further argued that the said sample has
been sent for testing after a delay of twenty
days, which is also clear violation of the said
Standing Order, as it is provided in it that the
contraband should be sent for chemical
analysis within a period of 72 hours. The
said delay has categorically prejudiced the
accused and there is every possibility of
interpolation and adulteration in the said
sample.

5. Learned counsel for the applicant
has placed reliance on the case law settled
by the Apex Court in case of State of
Rajasthan vs. Tara Singh1, in which it has
been held as under:-

(2) At the very outset, it must be
understood that the provisions of Section
50 would no longer be applicable to a
search such as the one made in the present
case as the opium had been carried on the
head in a gunny bag. A Bench of this Court
in State of Himachal Pradesh v. Pawan
Kumar, after examining the discrepant
views rendered in various judgments of this
Court has found that Section 50 of the Act
would not apply to any search or seizure
where the article was not being carried on
the person of the accused. Admittedly, in
the present case, the opium was being
carried on the head in a bag. Mr. Abhishek
Gupta, the learned Counsel for the
appellant-State, therefore, appears to be
right
when
he
contends
that
the
observations of the High Court that the
provisions of Section 50 of the Act would
not be applicable was no longer correct in
view of the judgment in Pawan Kumar's
case. We find, however, that the second
aspect on which the High Court has opined
calls for no interference. As per the
prosecution story the samples had been
removed from the Malkhana on the 26th of
February, 1998, and should have been
received in the laboratory the very next
day. The High Court has, accordingly
observed that the prosecution had not been
able to show as to in whose possession the
samples had remained from 26th February,
1998 to 9th March, 1998. The High Court
has also disbelieved the evidence of PW-6
and PW-9, the former being the Malkhana
incharge
and
the
latter
being
the
Constable, who had taken the samples to
the Laboratory to the effect that the
3 All. Om Prakash Verma Vs. State of U.P.
67
samples had been taken out on the 9th of
March, 1998 and not on the 26th February,
1998. The Court has also found that in the
absence of any reliable evidence with
regard to the authenticity of the letter dated
26th February, 1998 it had to be found that
the samples had remained in some
unknown custody from the 26th February,
1998 to 9th March, 1998. We must
emphasise that in a prosecution relating to
the Act the question as to how and where
the samples had been stored or as to when
they had dispatched or received in the
laboratory is a matter of great importance
on account of the huge penalty involved in
these matters. The High Court was,
therefore, in our view, fully justified in
holding that the sanctity of the samples had
been compromised which cast a doubt on
the prosecution story. We, accordingly, feel
that the judgment of the High Court on the
second aspect calls for no interference. The
appeal is, accordingly, dismissed. The
respondent is on bail. His bail bonds stand
discharged."

6. Learned counsel for the applicant
has submitted that the general procedure
for sampling provided in Standing Order
No. 01 of 1989 dated 13.06.1989 has not
been complied by the opposite party. He
has relied upon clause 2.1 to 2.8 of the
aforesaid standing order quoted herein
below :-

"2.1 All drugs shall be classified,
carefully, weighed and sampled on the spot
of seizure.

2.2 All the packages/containers
shall be numbered and kept in lots for
sampling. Samples from the narcotic drugs
and psychotropic substances seized, shall
be drawn on the spot of recovery, in
duplicate, in the presence of search
witnesses (Panchas) and the persons from
whose possession the drug is recovered and
a mention to this effect should invariably be
made in the panchnama drawn on the spot.

2.3 The quantity to be drawn in
each sample for chemical test shall not be
less than 5 grams in respect of all narcotic
drugs and psychotropic substances save in
the cases of opium, ganja and charas
(hashish) were a quantity of 24 grams in
each case is required for chemical test. The
same quantities shall be taken for the
duplicate sample also. The seized drugs in
the packages/containers shall be well
mixed to make it homogeneous and
representative
before
the
sample
(in
duplicate) is drawn.

2.4 In the case of seizure of a
single package/container, one sample in
duplicate shall be drawn. Normally, it is
advisable
to
draw
one
sample
(in
duplicate) from each package/container in
case of seizure of more than one
package/container.

2.5
However,
when
the
packages/containers seized together are of
identical size and weight, bearing identical
markings and the contents of each package
given identical results on colour test by the
drug
identification
kit,
conclusively
indicating that the packages are identical
in all respects the packages/container may
be carefully bunched in lots of 10
package/containers except in the case of
ganja and hashish (charas), where it may
be
bunched
in
lots
of,
40
such
packages/containers. For each such lot of
packages/containers,
one
sample
(in
duplicate) may be drawn.

2.6 Where after making such lots,
in the case of hashish and ganja, less than
20 packages/containers remain, and in the
case
of
other
drugs,
less
than
5
packages/containers remain, no bunching
would be necessary and no samples need
be drawn.
68 INDIAN LAW REPORTS ALLAHABAD SERIES

2.7 If such remainder is 5 or more
in the case of other drugs and substances
and 20 or more in the case of ganja and
hashish, one more sample (in duplicate)
may
be
drawn
for
such
remainder
package/container.

2.8 While drawing one sample (in
duplicate) from a particular lot, it must be
ensured that representative sample the in
equal
quantity
is
taken
from
each
package/container of that lot and mixed
together to make a composite whole from
which the samples are drawn for that lot."

7. Learned counsel has submitted that
the above clauses of the standing order
aforesaid clearly show that the police was
required to draw a sample from each packet
allegedly recovered with the help of field
testing kit. The mixing of the material from
all the packets and then drawing of
representative sample is not provided in the
Standing Order, as if, such a course is
adopted the sample would seize to be
representative sample of the corresponding
packet. In the present case 19 packets and
one polythene bag were recovered from the
possession of the two accused persons and
the procedure given in clause 2.4 of the
Standing Order No. 1 of 1989 was strictly
required to be followed since there were
only 20 packets in all from which the
sample was to be drawn. At this point of
time, it cannot be ascertained whether all
the 19 packets and one polythene bag (total
20 in all) contained the alleged contraband
of ganja or not.

8. Learned counsel for the applicant
has also relied upon the judgment of Delhi
High Court in the case of Aman Fidel
Chris v. Narcotics Control Bureau, Crl.
Appeal No.1027 of 2015 & Crl. M.B. 511
of 2019 and Crl. M.A. 1660 of 2020, in
support of his contentions. In this case the
conduct of the prosecution of not drawing
individual
sample
from
each
packet
recovered was considered to be violation of
Standing Order aforesaid.

9. Learned counsel for the applicant
has argued that the applicant is absolutely
innocent and has been falsely implicated in
the present case with a view to cause
unnecessary harassment and to victimize
him. The applicant is languishing in jail
since 22.06.2021. In case, the applicant is
released on bail, he will not misuse the
liberty of bail.

10. Learned A.G.A. has vehemently
opposed the bail application on the ground
that the recovery of the contraband article
is of commercial quantity.

11. The Apex Court in case of Noor
Aga v. State of Punjab2, has held in
paragraphs 123, 124 and 125 that the
standing order in dispute and other
guidelines issued by the authority having
legal sanction are required to be complied
by the arresting authorities. For ready
reference the aforesaid paragraphs are
quoted hereinbelow:-

"(123) Guidelines issued should
not only be substantially complied, but also
in a case involving penal proceedings, visa-vis a departmental proceeding, rigours of
such guidelines may be insisted upon.
Another important factor which must be
borne in mind is as to whether such
directions have been issued in terms of the
provisions of the statute or not. When
directions are issued by an authority having
the legal sanction granted therefore, it
becomes obligatory on the part of the sub
ordinate authorities to comply therewith.

(124) Recently, this Court in State
of Kerala & Ors. v. Kurian Abraham (P)
3 All. Om Prakash Verma Vs. State of U.P.
69
Ltd. & Anr.3, following the earlier decision
of this Court in Union of India v. Azadi
Bachao Andolan4, held that statutory
instructions are mandatory in nature.

(125) Logical corollary of these
discussions is that the guidelines such as
those present in the Standing Order can not
be
blatantly
flouted
and
substantial
compliance therewith must be insisted upon
for so that sanctity of physical evidence in
such cases remains intact. Clearly, there
has been no substantial compliance of
these guidelines by the investigating
authority which leads to drawing of an
adverse interference against them to the
effect that had such evidence been
produced, the same would have gone
against the prosecution."

12. The Apex Court in the Case of
Union
of
India
vs.
Shiv
Shankar
Keshari5, has held that the court while
considering the application for bail with
reference to Section 37 of the Act is not
called upon to record a finding of not
guilty. It is for the limited purpose
essentially confined to the question of
releasing the accused on bail that the court
is called upon to see if there are reasonable
grounds for believing that the accused is
not guilty and records its satisfaction about
the existence of such grounds. But the court
has not to consider the matter as if it is
pronouncing a judgment of acquittal and
recording a finding of not guilty.

13. Considering the facts of the case
and keeping in mind, the ratio of the Apex
Court's judgment in the case of Union of
India vs. Shiv Shankar Keshari (supra)
larger mandate of Article 21 of the
constitution of India, the nature of
accusations, the nature of evidence in
support thereof, the severity of punishment
which conviction will entail, the character
of the accused-applicant, circumstances
which
are
peculiar
to
the
accused,
reasonable possibility of securing the
presence of the accused at the trial,
reasonable apprehension of the witnesses
being tampered with, the larger interest of
the public/ State and other circumstances,
but without expressing any opinion on the
merits, I am of the view that it is a fit case
for grant of bail.

14. Let the applicant- Om Prakash
Verma,
who
is
involved
in
the
aforementioned case crime 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 subject
to following conditions. Further, before
issuing the release order, the sureties be
verified.

(i) The applicant shall file an
undertaking to the effect that he shall not
seek any adjournment on the date 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
IPC.

(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., may be issued and if
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 IPC.
70 INDIAN LAW REPORTS ALLAHABAD SERIES

(iv) The applicant shall remain
present, in person, before the Trial Court on
dates fixed for (1) opening of the case, (2)
framing of charge and (3) 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.

15. In case of breach of any of the
above conditions, it shall be a ground for
cancellation of bail.

16. It is made clear that observations
made in granting bail to the applicant shall
not in any way affect the learned trial Judge
in forming his independent opinion based
on the testimony of the witnesses.
----------
(2022)03ILR A70
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.12.2021

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Criminal Misc. Anticipatory Bail Application U/S
438 CR.P.C. No. 18604 of 2021

Hemant
Kumar
@
Hemant
Kumar
Saraswat ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Surya Bhan Singh, Sri Brijesh Kumar
Verma, Sri Swapnesh Singh, Sri Akshay
Gupta, Sri Shiv Nath Singh (Sr. Advocate)

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 438 - Indian
Penal Code,1860 - Section 420, 467, 468 &
471 - application-rejection-termination of
applicant being beneficiary of a forged
B.Ed marksheet who was appointed as
Assistant Teacher and continued to work
for about 10 years-privilege of the prearrest bail should be granted only in
exceptional cases-arrest is a part of the
investigation intended to secure several
purposes-cusodial interrrogation may be
necessary to reach the roots of the crimebail order granted to other persons are not
binding
on
the
court-Moreso,
one
deserving candidate has lost his seat for
lifetime by the act of the applicantWhether to grant or not is a matter of
discretion-Hence,
applicant
cannot
be
granted bail keeping in mind gravity and
nature of offence.(Para 1 to 23)

B. Ordinarily, arrest is a part of the
process
of
investigation
intended
to
secure several purposes. the accused may
have to be questioned in detail regarding
various facets of motive, preparation,
commission and aftermath of the crime.It
may be necessary to curtail his freedom in
order to enable the investigation to
proceed without hindrance and to protect
witnesses and persons connected with the
victim
of
crime,
to
prevent
his
disappearance, to maintain law and order
in the locality. For these or other reasons,
arrest may become an inevitable part of
the process of investigation.The legality of
the proposed arrest cannot be gone into in
an application under Section 438 of the
Code. The role of the investigator is well
defined and the jurisdictional scope of
interference by the court in the process of
investigation
is
limited.The

court
ordinarily will not interfere with the
investigation of a crime or with the arrest
of
the
accused
in
a
cognizable
offence.(Para 11 to 18)

The application is rejected. (E-6)

List of Cases cited: