# Pavan Kumar Agrawal (In Jail) v. State of U.P. & Anr

- **Citation:** (2022) 11 ILRA 907
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-17
- **Case number:** Criminal Misc. Bail Application No. 7858 of 2022
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pavan-kumar-agrawal-in-jail-v-state-of-u-p-anr-47923
- **Pages:** 11

## Headnote

Law
-
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985
-
Section 52 A-Applicant's elder brother holds a
license to 'Sell, stock, exhibit or offer for sale, or
distribute by wholesale, drugs other than those
specified in Schedule C, C(1) and X' and runs
medical store-by another license -authorized to
deal in drugs specified in Schedule C and C(1)
908 INDIAN LAW REPORTS ALLAHABAD SERIES
excluding those who specified in Schedule 'X'-
elder brother does not keep good health and
Applicant looks after the business-substances
recovered during the raid were medicines
manufactured by established manufacturing
companies-bills were shown -holds licenseprocedure u/s 52A has not been followedconfessional
statement
not
admissible
in
evidence-no criminal history.

Bail allowed. (E-9)
List of Cases cited:

## Text

11 All. Pavan Kumar Agrawal Vs. State of U.P. & Anr.
907
point of time. The report as was discussed
and believed in the said case, was rightly so
done but here I do not find any such report
available
from
any
technical
expert.
Judgment
is
therefore,
again
distinguishable on facts being in particular
set of facts of that case and so is of no help
to contesting respondents.

13. Sri Manas Bhargava very fairly
concedes at this stage that the objection
filed by the petitioner had remained
undisposed of even at the stage of final
hearing of the mater while the court
proceeded
to
believe
that
Advocate
Commissioner's report that was seriously
objected.

14. In such above view of the mater,
therefore, I am not able to sustain the
findings returned by the trial court as well
as the findings returned by the court of
appeal confirming the findings of the
Prescribed Authority on the issue whether
the building was in a dilapidated condition
and
deserved
release
under
Section
21(1)(b) of Act No. 13 of 1972. Both the
orders are hereby set aside.

15. Matter is remitted to the
Prescribed Authority to be decided afresh
after considering the objections of the
petitioner to the Advocate Commissioner's
report and disposing of the same first. It is
further provided that it would be more
desirable if the court proceeds to call for an
expert report in respect of the condition of
the building in question so that proper
adjudication of the point is done for
considering the application for release
under Section 21(1)(b) of Act No. 13 of
1972.

16. Both the parties shall appear on or
before 25.11.2022 before the Prescribed
Authority. The Prescribed Authority shall
thereafter proceed to decide the matter
finally in the light of observations made
herein above and also by giving full
opportunity of hearing to the contesting
parties, as expeditiously as possible,
preferably within a period of three months
from the date of production of certified
copy of this order. It is further provided that
in the meanwhile, the petitioner would
continue to pay rent as he has been paying
till now.

17. With the aforesaid observations
and directions, this petition stands allowed
with no order as to cost.
----------
(2022) 11 ILRA 907
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.10.2022

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Misc. Bail Application No. 7858 of 2022

Pavan Kumar Agrawal ...Applicant (In Jail)
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Samir Srivastava, Sri Ankit Agarval, Sri
Ravitendra Pratap Singh Chandel, Sri Som
Veer

Counsel for the Opposite Parties:
G.A., Sri Krishna Agarawal

Criminal
Law
-
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985
-
Section 52 A-Applicant's elder brother holds a
license to 'Sell, stock, exhibit or offer for sale, or
distribute by wholesale, drugs other than those
specified in Schedule C, C(1) and X' and runs
medical store-by another license -authorized to
deal in drugs specified in Schedule C and C(1)
908 INDIAN LAW REPORTS ALLAHABAD SERIES
excluding those who specified in Schedule 'X'-
elder brother does not keep good health and
Applicant looks after the business-substances
recovered during the raid were medicines
manufactured by established manufacturing
companies-bills were shown -holds licenseprocedure u/s 52A has not been followedconfessional
statement
not
admissible
in
evidence-no criminal history.

Bail allowed. (E-9)
List of Cases cited:

1. Mohd. Sahabuddin Vs St.of Assam, (2012) 13
SCC 491

2. Vibhor Rana Vs U.O.I., 2021 SCC OnLine All
908

3. Makhan Singh Vs St.of Har., (2015) 12 SCC
247

4. Khet Singh Vs U.O.I., (2002) 4 SCC 380

5. Noor Aga Vs St.of Pun., (2008) 16 SCC 417

6. U.O.I. Vs Mohanlal, (2016) 3 SCC 379

7. St.of Punjab Vs Baldev Singh, (1999) 6 SCC
172

8. Tofan Singh Vs St.of T.N., (2021) 4 SCC 1

9. Taylor Vs Taylor (1875) 1 Ch D 475

10. Nazir Ahmad Vs King Emperor, AIR 1936 PC 253

11. U.O.I. Vs Rattan Mallik, (2009) 2 SCC 624
(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Ankit Agarval Advocate,
the learned Counsel for the applicant and
Sri Krishna Agarawal Advocate, the
learned counsel representing the Central
Bureau of Narcotics (which will hereinafter
be referred to as ''C.B.N.').

2. The instant application has been
filed seeking release of the applicant on
bail in C.B.N. Case Crime No. 04 of 2021,
under
Sections
21/22/25/28/30/35
of
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985
(which
will
hereinafter be referred to as ''the Act'),
Police Station C.B.N. New Delhi.

3. On 26-10-2021, the officers of
C.B.N. had conducted a search at the
premises of M/s G. M. Traders and it is
alleged
that
various
narcotic
and
psychotropic drugs were recovered from
the premises and the applicant was arrested
from the premises.

4. In the affidavit filed in support of
the bail application it has been stated that
the applicant's elder brother Lakshman
Agrawal holds a license to ''Sell, Stock,
Exhibit or offer for sale, or distribute by
wholesale, drugs other than those specified
in Schedule C, C (1) and X' and he is
running his medical store in the name and
style of ''M/s G. M. Traders' and by means
of another license, he has been authorised
to deal in drugs specified in Schedule C
and C(1), excluding those who specified in
Schedule ''X'.

5. It has further been stated in the
affidavit that Sri. Lakshman Agrawal does
not keep good health and, therefore, the
applicant looks after his business.

6. It has further been stated in the
affidavit that the applicant is innocent and
he has been falsely implicated in the
present case; that the applicant has no
criminal history and he is languishing in
jail since 27-10-2021.

7. The C.B.N. has filed a counter
affidavit stating that 31456 capsules of
Tramadol, 158 injections and 800 tablets of
Clonazepam,
9400
injections
of
11 All. Pavan Kumar Agrawal Vs. State of U.P. & Anr.
909
Pentazocine, 1368 bottles of Codeine
Syrup, 30 tablets of Diazepam, 216
injections of Buprenorphine and 580 tablets
of Chlordiazepoxide were recovered in the
search conducted at three premises of M/S
G.M. Traders on 26-10-2021 and the
applicant was arrested at 08:00 hours on
27-10-2021.

8. It has been stated in the counter
affidavit that in his voluntary statement
recorded under Section 67 of the NDPS
Act, the applicant has admitted that he has
resorted to illegal sale and stock of illicit
NDPS medicines.

9. A copy of the complaint filed by the
C.B.N.
has been
annexed
with
the
supplementary counter affidavit in this
Court in which the lists of recovered
medicines have been mentioned. All the
substances recovered during the raid were
medicines manufactured by established
manufacturing companies that had been
purchased by the applicant and bills in
respect of the same were shown to the
officers of C.B.N., except Tramadol and
Buprenorphine.

10. It has further been stated in the
complaint that the statement of several
persons were recorded during investigation
from which it appeared that the medicines
had been purchased by M/s G. M. Traders
on proper bills as per the provisions of law
in this regard.

11. Although numerous documents
have been annexed with the copy of the
complaint filed before this Court, a
questionnaire issued by the Court of
Special Judge, NDPS Act has been annexed
with the supplementary counter affidavit,
stating that no document has been filed by
C.B.N. along with the complaint.

12. Section 2 of the NDPS Act
defines narcotic drugs and manufactured
drugs as follows: -

"(xiv) "narcotic drug" means
coca leaf, cannabis (hemp), opium, poppy
straw and includes all manufactured drugs;

(xi) "manufactured drug" means--

all coca derivatives, medicinal
cannabis, opium derivatives and poppy
straw concentrate;

any other narcotic substance or
preparation which the Central Government
may, having regard to the available
information as to its nature or to its nature
or to a decision, if any, under any
International Convention, by notification in
the Official Gazette, declare to be a
manufactured drug,

but does not include any narcotic
substance or preparation which the Central
Government may, having regard to the
available information as to a decision, if
any, under any International Convention,
by notification in the Official Gazette,
declare not to be a manufactured drug;

13. Since NDPS is a Special Act
providing stringent punishments for special
offences, the first thing to be seen would be
whether the provisions of the Act are
applicable in the present case. For that, the
CBN has to establish that the substances
recovered were ''narcotic drugs'. Although
the CBN has filed a supplementary counter
affidavit running into 900 pages, no
declaration
issued
by
the
Central
Government under Section 2 (xi) of the Act
has been placed on record.

14. One of the medicines recovered is
Corex T Cough Syrup and it has been
alleged in the counter affidavit that it
contains Codeine and, therefore, it is a
manufactures drug and hence it is a
910 INDIAN LAW REPORTS ALLAHABAD SERIES
narcotic drug. However, the composition of
Corex T, or of any other medicine
recovered, has not been placed on record.

15. Codeine is mentioned at Serial
No. 132 of Schedule H appended to the
Drugs and Cosmetics Rules, 1945, and,
therefore, it is a drug.

16. On 14-11-1985 the Government
of India had issued a notification No.
826(E) dated 14.11.1985 and S.O. 40(E)
dated 29-01-1993 containing the list of
narcotic drugs and Entry 35 thereof is as
follows:--

"Methyl
morphine
(commonly
known as "Codeine') and Ethyl morphine
and their salts (including Dionine), all
dilutions and preparations except those
which are compounded with one or more
other ingredients and containing not more
than 100 milligrams of the drug per
dosage unit and with a concentration of
not
more
than
2.5%
in
undivided
preparations
and
which
have
been
established in Therapeutic practice."

 (emphasis supplied)

17. As per the aforesaid Notification,
if any drug contains not more than 100
milligrams of Methyl Morphine, which is
commonly known as Codeine, per dosage
unit, and in that drug Codeine is
compounded with one or more other
ingredients and if in the drug the
concentration of Codeine is not more than
2.5% in undivided preparations and the
drug has been established in Therapeutic
practice, will not be a "Manufactured
Drug" and, therefore, it will not be a
"Narcotic Drug". It is not the case of
C.B.N. that Corex T Cough Syrup contains
pure Codeine without compounding it with
any other substance, or that the drug
concentration of Codeine in Corex T cough
syrup exceeds 2.5%. Therefore, Corex T
might not be a manufactured drug.

18. Similar is the case of other
medicines and there is nothing on record to
establish that those fall within the purview
of the definition of ''manufactured drugs'
under the NDPS Act.

19. The other drugs recovered contain
Tramadol
Hydrochloride,
which
is
mentioned at serial no. 507, Clonazepam,
which is mentioned at serial no. 125,
Chloradiazepoxide, which is mentioned at
serial no. 105, Diazepam, which is
mentioned at serial no. 147, Pentazocine
which finds place at serial no. 392 of the
Schedule H appended to the Drugs and
Cosmetics
Rules.
Buprenorphine
and
Pentazocine is also contained in some of
the drugs and those find place in Schedule
H1 appended to the aforesaid Rules.

20. Sri. Krishna Agarwal has relied
upon the following passage from the
decision of the Hon'ble Supreme Court in
Mohd. Sahabuddin v. State of Assam,
(2012) 13 SCC 491, wherein the Hon'ble
Supreme Court was deciding an appeal
against an order passed by the High Court
denying bail to a person accused of
transporting huge quantity of some drugs
without any documents: -

"12. As pointed out by us earlier,
since the appellants had no documents in
their possession to disclose as to for what
purpose such a huge quantity of Schedule
H drug containing narcotic substance was
being transported and that too stealthily, it
cannot be simply presumed that such
transportation was for therapeutic practice
as mentioned in the Notifications dated 1411-1985 and 29-1-1993. Therefore, if the
11 All. Pavan Kumar Agrawal Vs. State of U.P. & Anr.
911
said requirement meant for therapeutic
practice is not satisfied then in the event of
the entire 100 ml content of the cough
syrup containing the prohibited quantity of
codeine phosphate is meant for human
consumption, the same would certainly fall
within the penal provisions of the NDPS
Act calling for appropriate punishment to
be inflicted upon the appellants. Therefore,
the appellants' failure to establish the
specific conditions required to be satisfied
under the abovereferred to notifications,
the application of the exemption provided
under the said notifications in order to
consider the appellants' application for bail
by the courts below does not arise.

In Mohd. Sahabuddin, the drugs
were being transported by the accused
stealthily without any documents whereas
in the present case the drugs had been
purchased by M/s G. M. Traders, from
various suppliers through valid invoices.
Therefore,
the
aforesaid
case
is
distinguishable on facts.

21. Moreover, the Notification dated
14-01-1985 uses the words "established in
therapeutic practices" and not the words
"for therapeutic practice". The phrase "for
therapeutic practice" has been interpreted
by a Division Bench of this Court in
Vibhor Rana versus Union of India, 2021
SCC OnLine All 908, in the following
manner: -

"41. The expression "established
in therapeutic practice" has not been
interpreted in any previous decision. It is a
basic rule of interpretation that the words
used in the statute should be given there
simple and natural meaning and neither
any word should be added nor should any
word be ignored while interpreting any
provision. When the Government has used
the expression "established in therapeutic
practice" these words cannot be altered so
as to read it as "used for therapeutic
purposes". The phrase "established in
therapeutic practice" apparently means
that the compound in question has been
established to be a drug in accordance with
the therapeutic practices followed for
establishment of new drugs."

22. In Makhan Singh v. State of
Haryana, (2015) 12 SCC 247 while
dealing with a case under the Narcotic
Drugs and Psychotropic Substances Act,
the Supreme Court reiterated that "...It is a
well-settled principle of the criminal
jurisprudence that more stringent the
punishment, the more heavy is the burden
upon the prosecution to prove the offence."

23. All the substances recovered are
branded
medicines
manufactured
by
established manufacturing companies. The
composition of none of the medicines has
been placed on record to establish that
these
fall
within
the
purview
of
''manufactured drugs' and the provisions of
the Act are applicable to the recoveries
made from the applicant.

24. If the substance recovered fall
within the purview of the Act, the
procedure laid down by the legislature in
Section 52 A of the Act to be followed
upon seizure of any narcotic drug or
psychotropic
substance
regarding
preparation of inventory, collection of
samples, taking photographs etc. has to be
followed. The CBN has not placed any
material with the counter affidavit to
indicate that the any empowered officer has
made an application to any Magistrate for
the purposes mentioned in Section 52 A
and that the Magistrate has allowed the
application. Therefore, at this stage, prima
facie
it
appears
that
the
procedure
912 INDIAN LAW REPORTS ALLAHABAD SERIES
prescribed in Section 52 A of the Act has
not been followed in the present case.

25. In exercise of the powers
conferred by Section 52 A (1) of the Act,
the Government of India, Ministry of
Finance (Department of Revenue) has
issued a Standing Order No. 1/89 dated
13th June, 1989, laying down procedure
for collection of samples etc. Section II
of the Standing Order No. 1/89 reads as
under:--

"Section II General Procedure
for Sampling, Storage, etc.

2.1.
Sampling
and
classification, etc. of drugs. All drugs
shall be properly classified carefully
weighed and sampled on the spot of
seizure.

2.2. Drawal of samples. All the
packages/containers
shall
be
serialy
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 person 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. Quantity to be drawn for
the sampling.-- 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) where 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.

3.1. Preparation of inventory.--
After sampling, detailed intentory of such
packages/containers shall be prepared
for being enclosed to the panchnama.
Original
wrappers
shall
also
be
preserved for evidentiary purposes.

 (Emphasis supplied)

26. In Khet Singh v. Union of
India, (2002) 4 SCC 380, the Hon'ble
Supreme Court held that: -

"10. The instructions issued by
the Narcotics Control Bureau, New Delhi
are to be followed by the officer-incharge of the investigation of the crimes
coming within the purview of the NDPS
Act, even though these instructions do not
have the force of law. They are intended
to guide the officers and to see that a fair
procedure is adopted by the officer-incharge of the investigation."

27. In Noor Aga v. State of
Punjab, (2008) 16 SCC 417, the Hon'ble
Supreme Court held that: -

"89. Guidelines issued should
not only be substantially complied with,
but also in a case involving penal
proceedings, vis-à-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 therefor, it becomes obligatory
on the part of the subordinate authorities
to comply therewith.

90. Recently, this Court in State
of Kerala v. Kurian Abraham (P) Ltd.
11 All. Pavan Kumar Agrawal Vs. State of U.P. & Anr.
913
(2008) 3 SCC 582, following the earlier
decision of this Court in Union of India v.
Azadi Bachao Andolan (2004) 10 SCC 1,
held
that
statutory
instructions
are
mandatory in nature.

91. The logical corollary of these
discussions is that the guidelines such as
those present in the Standing Order cannot
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 with
these guidelines by the investigating
authority which leads to drawing of an
adverse inference against them to the effect
that had such evidence been produced, the
same would have gone against the
prosecution."

28. In Union of India v. Mohanlal,
(2016) 3 SCC 379, the Hon'ble Supreme
Court held that: -

"12. Section 52-A(1) of the NDPS
Act,
1985
empowers
the
Central
Government to prescribe by a notification
the procedure to be followed for seizure,
storage
and
disposal of drugs and
psychotropic
substances.
The
Central
Government has in exercise of that power
issued Standing Order No. 1 of 1989 which
prescribes the procedure to be followed
while conducting seizure of the contraband.
Two subsequent standing orders one dated
10- 5-2007 and the other dated 16-1-2015
deal with disposal and destruction of seized
contraband and do not alter or add to the
earlier standing order that prescribes the
procedure for conducting seizures. Para
2.2 of Standing Order No. 1 of 1989 states
that samples must be taken from the seized
contraband on the spot at the time of
recovery itself....
* * *

15. It is manifest from Section 52A(2)(c) (supra) that upon seizure of the
contraband the same has to be forwarded
either to the officer-in-charge of the
nearest police station or to the officer
empowered under Section 53 who shall
prepare an inventory as stipulated in the
said provision and make an application to
the
Magistrate
for
purposes
of
(a)
certifying the correctness of the inventory,
(b) certifying photographs of such drugs or
substances taken before the Magistrate as
true, and (c) to draw representative
samples in the presence of the Magistrate
and certifying the correctness of the list of
samples so drawn.
16. Sub-section (3) of Section 52-A requires
that the Magistrate shall as soon as may be
allow the application. This implies that no
sooner the seizure is effected and the
contraband forwarded to the officer-incharge of the police station or the officer
empowered, the officer concerned is in law
duty-bound to approach the Magistrate for
the purposes mentioned above including
grant of permission to draw representative
samples in his presence, which samples will
then be enlisted and the correctness of the
list of samples so drawn certified by the
Magistrate. In other words, the process of
drawing of samples has to be in the
presence and under the supervision of the
Magistrate and the entire exercise has to be
certified by him to be correct.
* * *

31. To sum up we direct as under:

31.1. No sooner the seizure of any
narcotic drugs and psychotropic and
controlled substances and conveyances is
effected, the same shall be forwarded to the
officer in charge of the nearest police
station or to the officer empowered under
Section 53 of the Act. The officer concerned
shall then approach the Magistrate with an
application under Section 52-A(2) of the
914 INDIAN LAW REPORTS ALLAHABAD SERIES
Act, which shall be allowed by the
Magistrate as soon as may be required
under sub-section (3) of Section 52-A, as
discussed by us in the body of this judgment
under the heading "seizure and sampling".
The sampling shall be done under the
supervision of the Magistrate as discussed
in Paras 15 to 19 of this order.

31.2. The Central Government
and its agencies and so also the State
Governments shall within six months from
today take appropriate steps to set up
storage facilities for the exclusive storage
of seized narcotic drugs and psychotropic
and controlled substances and conveyances
duly equipped with vaults and doublelocking system to prevent theft, pilferage or
replacement of the seized drugs. The
Central
Government
and
the
State
Governments shall also designate an
officer each for their respective storage
facility and provide for other steps,
measures as stipulated in Standing Order
No. 1 of 1989 to ensure proper security
against theft, pilferage or replacement of
the seized drugs.

31.3. The Central Government
and the State Governments shall be free to
set up a storage facility for each district in
the States and depending upon the extent of
seizure and store required, one storage
facility for more than one districts.

31.4. Disposal of the seized drugs
currently lying in the Police Malkhanas
and other places used for storage shall be
carried out by the DDCs concerned in
terms of the directions issued by us in the
body of this judgment under the heading
"disposal of drugs"."

29. However, there is nothing on record
to indicate that an application was filed before
the Magistrate seeking permission to draw
representative samples in his presence, that the
samples were actually drawn and the
correctness of the list of samples so drawn was
certified by the Magistrate as mandated by the
legislature in Section 52 A and as directed by
the Hon'ble Supreme Court in Mohanlal
(Supra).

30. In State of Punjab v. Baldev Singh,
(1999) 6 SCC 172, the Hon'ble Supreme Court
held that: -

"Prosecution cannot be permitted to
take advantage of its own wrong. Conducting
a fair trial for those who are accused of a
criminal offence is the cornerstone of our
democratic society. A conviction resulting
from an unfair trial is contrary to our concept
of justice. Conducting a fair trial is both for
the benefit of the society as well as for an
accused and cannot be abandoned. While
considering the aspect of fair trial, the nature
of the evidence obtained and the nature of the
safeguard violated are both relevant factors.
Courts cannot allow admission of evidence
against an accused, where the court is
satisfied that the evidence had been obtained
by a conduct of which the prosecution ought
not to take advantage particularly when that
conduct had caused prejudice to the accused."

31. In Tofan Singh v. State of T.N.,
(2021) 4 SCC 1, the Hon'ble Supreme Court
reiterated that: -

"55. Given the stringent provisions
of the NDPS Act, together with the safeguards
mentioned in the provisions discussed above, it
is important to note that statutes like the NDPS
Act have to be construed bearing in mind the
fact that the severer the punishment, the
greater the care taken to see that the
safeguards provided in the statute are
scrupulously followed."

32. The principle that where the law
prescribes a manner for doing a thing, the
11 All. Pavan Kumar Agrawal Vs. State of U.P. & Anr.
915
thing has to be done in that manner or not
at all, was propounded in Taylor versus
Taylor (1875) 1 Ch D 475 and it was
followed by the Privy Council in Nazir
Ahmad versus King Emperor, AIR 1936
PC 253 and it has consistently been
followed since then. What prima facie
appears at this stage is that the procedure
prescribed by Section 52 A of the Act and
by the Standing Order No. 1 of 1989 issued
by the Central Government and the
guidelines issued by the Hon'ble Supreme
Court in Mohanlal (Supra) have not been
followed in the present case, which vitiates
the prosecution.

33. It has further been held in Tofan
Singh (Supra) that: -

"158.1. That the officers who are
invested with powers under Section 53 of
the NDPS Act are "police officers" within
the meaning of Section 25 of the Evidence
Act, as a result of which any confessional
statement made to them would be barred
under the provisions of Section 25 of the
Evidence Act, and cannot be taken into
account in order to convict an accused
under the NDPS Act.

158.2. That a statement recorded
under Section 67 of the NDPS Act cannot
be used as a confessional statement in the
trial of an offence under the NDPS Act."

Therefore,
the
confessional
statements of the applicant cannot be used
in the trial.

34. In Union of India v. Rattan
Mallik, (2009) 2 SCC 624, the Hon'ble
Supreme Court explained the principles
applicable in grant of Bail in offences
under the NDPS Act as follows:--

"11. Section 37 of the NDPS Act,
as substituted by Act 2 of 1989 with effect
from 29-5-1989 with further amendment by
Act 9 of 2001 reads as follows:

"37. Offences to be cognizable
and non-bailable.-

(1)
Notwithstanding
anything
contained in the Criminal Procedure Code,
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 27-A
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 Page 11
of 15

(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 sub-section

(1) are in addition to the
limitations under the Criminal Procedure
Code, 1973 (2 of 1974), or any other law
for the time being in force on granting of
bail."

It is plain from a bare reading of
the non obstante clause in Section 37 of the
NDPS Act and sub-section (2) thereof that
the power to grant bail to a person accused
of having committed offence under the
NDPS Act is not only subject to the
limitations imposed under Section 439 of
the Criminal Procedure Code, 1973, it is
also subject to the restrictions placed by
clause (b) of sub-section (1) of Section 37
of the NDPS Act. Apart from giving an
opportunity to the Public Prosecutor to
oppose the application for such release, the
916 INDIAN LAW REPORTS ALLAHABAD SERIES
other
twin
conditions
viz.
(i)
the
satisfaction of the court that there are
reasonable grounds for believing that the
accused is not guilty of the alleged offence;
and (ii) that he is not likely to commit any
offence while on bail, have to be satisfied.
It is manifest that the conditions are
cumulative
and
not
alternative.
The
satisfaction contemplated regarding the
accused being not guilty, has to be based
on "reasonable grounds". The expression
"reasonable grounds" has not been defined
in the said Act but means something more
than prima facie grounds. It connotes
substantial probable causes for believing
that the accused is not guilty of the offence
he is charged with. The reasonable belief
contemplated in turn, points to existence of
such facts and circumstances as are
sufficient
in
themselves
to
justify
satisfaction that the accused is not guilty of
the alleged offence (vide Union of India v.
Shiv Shanker Kesari, (2007) 7 SCC 798).
Thus, recording of satisfaction on both the
aspects, noted above, is sine qua non for
granting of bail under the NDPS Act.

We may, however, hasten to add
that while considering an application for
bail with reference to Section 37 of the
NDPS Act, the court is not called upon to
record a finding of "not guilty". At this
stage, it is neither necessary nor desirable
to weigh the evidence meticulously to
arrive at a positive finding as to whether
or not the accused has committed offence
under the NDPS Act. What is to be seen is
whether there is reasonable ground for
believing that the accused is not guilty of
the offence(s) he is charged with and
further that he is not likely to commit an
offence under the said Act while on bail.
The satisfaction of the court about the
existence of the said twin conditions is for a
limited purpose and is confined to the
question of releasing the accused on bail."

 (Emphasis supplied)

35. Analyzing the facts of the present
case for the purpose of deciding the
applicant's claim for bail in light of the
aforesaid law, I find the following facts to
be relevant for deciding the application for
grant of bail to the applicant: -

(i) The drugs in question have
been
manufactured
by
established
manufacturing companies and the same had
been purchased by M/s G. M. traders from
various
suppliers
with
proper
documentation;

(ii) The proprietor of M/s G. M.
Traders Lakshman Prasad holds license to
deal in the drugs recovered and the
applicant being his younger brother, claims
to have been looking after his business
because of his illness;

(iii) The drugs in question are
mentioned in Schedule H and Schedule H 1
appended to the Drugs and Cosmetics
Rules and at this stage, there is nothing on
record to even prima facie indicate that the
same are narcotic drugs;

(iv) No material has been placed
on record to indicate that the procedure
prescribed in Section 52 A of the Act has
been followed in the present case

(v) The confessional statement of
the applicant is not admissible in evidence
in view of the law laid down by the Hon'ble
Supreme Court in Tofan Singh (Supra);

36. The aforesaid facts raise doubts
against the prosecution case and it give rise
to a reasonable ground for prima facie
satisfaction at this stage that the applicant
may not be held guilty of the alleged
offences.

37. The applicant has no criminal
history and, therefore, there is no ground to
11 All. Irfan Ahmad (Juvenile) Vs. State of U.P. & Anr.
917
believe that in case the applicant is released
on bail, he would again indulge in
committing similar offences.

38. Moreover, nothing has been
placed on record which may give rise to a
reasonable apprehension that in case the
applicant is released on bail, he would
influence the witnesses.

39. No other material has been placed
by the respondent C.B.N., which may
indicate that the applicant is not entitled to
be released on bail.

40. In view the aforesaid discussion
and without making any observations on
merits of the case, I am of the view that the
applicant is entitled to be released on bail
pending conclusion of the trial. The bail
application is accordingly allowed.

41. Let the applicant - Pavan Kumar
Agrawal, be released on bail in C.B.N.
Case Crime No. 04 of 2021, under Sections
21/22/25/28/30/35 of Narcotic Drugs and
Psychotropic Substances Act, 1985, Police
Station
C.B.N.
New
Delhi,
on
his
furnishing a personal bond and two reliable
sureties each of the like amount to the
satisfaction of the court concerned subject
to following conditions:--

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

(ii)
The
applicant
will
not
influence any witness.

(iii) The applicant will appear
before the trial court on the dates fixed,
unless personal presence is exempted.

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

42. In case of breach of any of the
above conditions, the prosecution shall be
at liberty to move an application before this
Court seeking cancellation of bail.
----------
(2022) 11 ILRA 917
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.10.2022

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Revision No. 743 of 2022

Irfan Ahmad (Juvenile) ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Aftab Alam

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Juvenile Justice
(Care and Protection of Children) Act,
2015 - Section 102 - Revision, Indian
Penal Code, 1860 - Sections 376, 504 &
506 - The Protection of Children From
Sexual Offences Act, 2012 - Section
3/4, The Schedule Castes And The
Schedule
Tribes
(Prevention
of
Atrocities ) Act , 1989 - Section 3(2)(v)
-
Revisional
jurisdiction
is
only
applicable
in
exceptional
situations
where
the
justice
delivery
system
requires
interference
to
correct
manifest illegalities or prevent a gross
miscarriage of justice - It is not an
appellate
forum
for
scrutinizing
evidence or exercising the jurisdiction
simply due to the factum of another
view - in the event of justice failure,
the
Revisional
power's
applicability
remains unaltered. (Para - 11)