# Sandeep @ Kuldeep (In Jail) v. State of U.P

- **Citation:** (2020) 6 ILRA 1
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-06
- **Case number:** Criminal Misc. Bail Application No. 56125 of 2019
- **Bench:** Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sandeep-kuldeep-in-jail-v-state-of-u-p-45743
- **Pages:** 5

## Headnote

A.G.A.

A. Testimony of witnesses yet to be recordedand evidences yet to be considered-commercial
quantity of ganja-20 kg-recovered 150kg.

Bail Application rejected. (E-9)

List of cases cited:-

## Text

6All. Sandeep @ Kuldeep Vs. State of U.P.
1
(2020)06ILR A1
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.03.2020

BEFORE

THE HON'BLE JAYANT BANERJI, J.

Criminal Misc. Bail Application No. 56125 of
2019

Sandeep @ Kuldeep ...Applicant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Santosh Kumar Dubey, Sri B.S. Tripathi,
Sri Praveen Kumar Dubey

Counsel for the Opposite Parties:
A.G.A.

A. Testimony of witnesses yet to be recordedand evidences yet to be considered-commercial
quantity of ganja-20 kg-recovered 150kg.

Bail Application rejected. (E-9)

List of cases cited:-

1. Netram Vs. State of Rajasthan,2014 Criminal
Law Report 163.

2. Union of india vs. Balmukund, 2009 (12) SCC
161

3. Om Praksh Bishnoi Vs. Union of India, 2019
SCC Online Rajasthan 1280

4.Manoj Chaudhari in Criminal Misc. Bail
Application No. 16781 of 2018

5. Crl. Misc. Bail Application No. 3515 of 2020 (
Shailendra Kumar Gupta @ Shailu Vs. State of U.P.)

(Delivered by Hon'ble Jayant Banerji, J.)

1. This bail application has been
filed to enlarge the applicant on bail in
Case Crime No. 224 of 2019, under
Sections 18/20 of Narcotic Drug and
Psychotropic
Substances
Act,19851,
Police Station Site-5, Greater Noida,
District Gautambudh Nagar.

2. The FIR dated 31.8.2019 has
been lodged against the applicant and
two others alleging recovery of 150 Kg
'Ganja' in 30 bags from the vehicle in
which the applicant was traveling.

3. A perusal of the FIR reveals that
the first informant, the Station House
Officer
of
P.S.
Greater
Noida
was
patrolling the area falling under him in his
official vehicle along with other police
personnel.
On
reaching
the
Sirsa
roundabout, a vehicle coming from the
roundabout was stopped and checked
which was being driven by one Susheel
who said that the vehicle is loaded with
coconuts. Since the season was not of
coconuts, the matter became suspect. Two
persons jumped off from the rear side of
the vehicle and ran into the jungle in the
direction of a flour mill. They were chased
by two policemen but they could not be
caught. The driver revealed his name as
Bitti alias Suneel son of Satyaveer, resident
of village Ghanghola, P.S. Site-5, District
Gautam Budh Nagar and said that the
vehicle was hired by him and it had bags of
coconut and below the coconuts bags,
packets of illicit 'Ganja' were present.
Thereafter, the driver was informed that he
could have his physical search done by a
Magistrate or Gazetted Officer who could
be called by the informant over phone. The
driver said that since you have caught me
and when full information has been
disclosed to you, then you can search me
physically as well as the vehicle. Then, the
police personnel searched each other to
confirm whether any of them had any illicit
2 INDIAN LAW REPORTS ALLAHABAD SERIES
Ganja. The Station Officer spoke to Circle
Officer who said that he was busy with
official work. The Gram Pradhan, Sirsa, Sri
Prakash was also spoken over mobile about
the incident but he also expressed his
inability to come. Therefore, under the
provisions of Section 50 of the N.D.P.S.
Act, the consent letter was got prepared
which was signed and then physical search
of the vehicle was done. Under five bags of
coconuts, 30 packets of illicit 'Ganja' were
recovered and to weigh the 'ganja' the Head
Constable was sent to village Sirsa to get a
weighing scale. In the meantime, the
members of the public moving on the road
were asked to be witnesses of the incident.
However, none of them agreed. The Head
Constable returned with an electronic
weighing scale and every packet was
weighed. Each packet weighed 5 kg and a
total of 150 kg 'ganja' was recovered. The
driver of the vehicle was asked to tell the
names of the persons who had jumped off
the vehicle and run away. The names of his
elder brother, Sandeep son of Satyaveer
(the applicant), and of one Kullan alias
Gulab Singh son of Suradpal Singh were
disclosed by him. He said that the three of
them were taking the narcotic substance to
Ghanghola. The accused was informed
about his offence under Section 18/20 of
the N.D.P.S. Act and was arrested at 23.30
hours. From the recovered material, by way
of sample, 100 gm of 'Ganja' were taken
and kept in a polythene and sealed in a
cloth after affixing stamp. The sample of
the stamp was made and the rest of the
recovered material was recorded and
seized. During arrest, the orders and
directions of the Human Right Commission
and the Hon'ble Supreme Court were
followed. The arrest memo was prepared at
the site and was dictated by the Station
Officer to the Senior Sub Inspector in the
light of a torch on the bonnet of the vehicle.
The information of arrest would be given as
stated by the accused after reaching the
police station. The memo was read out to
the other police personnel who made their
signatures thereon and a carbon copy of the
memo was given to the accused.

4. Sri B.S. Tripathi, Advocate,
holding brief of the learned counsel for the
applicant has contended that the applicant
was not arrested on the spot and no narcotic
substance
was
recovered
from
his
possession. It is contended that the
mandatory provisions of Section 42 and 50
of the NDPS Act were not complied with.
Learned counsel has referred to the
Standing Instruction No.1 of 1988 of the
Central Government, which, however, has
not been produced for reference before the
Court. It is his contention that only 100 gm
of 'Ganja' as sample was taken, whereas the
mandate of Standing Instruction No. 1 of
1988 is that where there are several packets
of narcotic seized, the sample has to be
taken from each individual packet and sent
for analysis. The analysis has to be done by
testing kits approved by the United
Nations. It is contended by the learned
counsel for the applicant that the coaccused in the matter namely Kullan @
Gulab Singh has already been enlarged on
bail by this Court by means of an order
dated 22.10.2019 in Criminal Misc. Bail
Application No. 43996 of 2019.

5. It is stated that since the mandate of
Standing Instruction No. 1 of 1988 has not
been complied with, the recovery of 150 kg
of 'Ganja' becomes suspicious and the
applicant is entitled to be enlarged on bail.
In support of his contention, learned
counsel has referred to paragraph nos.
11,12 and 13 of the judgment of the High
Court of Rajasthan in Netram Vs. State of
Rajasthan2, paragraph nos. 10 and 16 of
6All. Sandeep @ Kuldeep Vs. State of U.P.
3
the judgment of the Supreme Court in the
matter
of
Union
of
India
Vs.
Balmukund3, the judgement of the High
Court of Rajasthan in Om Praksh Bishnoi
Vs. Union of India4 and the order dated
22.5.2018 passed by this Court in the case
of Manoj Chaudhari in Criminal Misc.
Bail Application No. 16781 of 2018.

6. Sri Abhishek Singh, learned
counsel, brief holder for the State, opposing
the bail application, has stated that the
charge sheet has already been filed in the
trial court against the applicant. It is
contended that as far as compliance of
Section 42 and 50 of the N.D.P.S. Act is
concerned, the consent letter of the
applicant is the part of the case diary. He
has further contended that the issues that
are being raised by the applicant before this
Court in support of the bail application, are
to be looked into by the trial court during
the trial. He contends that given the fact
that the recovery of 'Ganja' from the
possession of the accused-person exceeds
the commercial quantity, strict view may be
taken by the Court with regard to bail.

7. Though, admittedly, the applicant
was not arrested on the spot, but he was
named by his brother, the driver of the
vehicle, Bitti alias Suneel. No material has
been placed on behalf of the applicant to
show whether during investigation, it
emerged that the applicant was not present
on the spot. In any view of the matter, the
presence of the applicant or otherwise at
the spot, false implication or not, both are
disputed questions of fact. Whether the
provisions of Standing Instruction No. 1 of
1988 were duly complied with or not while
taking samples of the narcotic drug on the
recovery being made from the vehicle is
again a question of fact that can be looked
into during trial. Further, it is no longer resintegra that compliance of section 50 of the
N.D.P.S. Act is a subject matter of trial.

8. The judgement and orders in the
case of Netram (supra), Union of India
Vs. Balmukund (supra) which have
considered Standing Instruction No. 1 of
1988, would not be applicable in the instant
application. The judgement in the matter of
Netram and Balmukund were delivered in
Criminal Appeals that arose out of the
judgements of conviction and acquittal
respectively and not in bail applications. In
those appeals the testimony of witnesses
and evidence on record of the trials were
noticed. Therefore, the applicant cannot
derive any benefit from those judgements.

9. The order of the Rajasthan High
Court in the case of Om Praksh Bishnoi
and of this Court in Manoj Chaudhari are
orders passed on the third Bail Application
and on the first bail application respectively
of the respective applicants therein granting
bail. Reliance in these two orders has been
placed on the Standing Instruction No. 1 of
1988 issued by the Narcotic Bureau, New
Delhi. However, with due respect, I am
unable to treat these two orders in Om
Praksh Bishnoi and Manoj Chaudhari as
precedents for the purpose of adjudication
of the present bail application on merits.

10. Section 37 of the N.D.P.S. Act
reads as follows:-

"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
4 INDIAN LAW REPORTS ALLAHABAD SERIES
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 sub-section
(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".

11. Liberal approach in the matter of
grant of bail in the cases covered under the
provisions of Section 37(1)(b) of the
N.D.P.S. Act is not called for and the
provisions require strict and mandatory
compliance by the court where a person is
accused of an offence punishable for
offences under Section 19 or section 24 or
Section 27A and also for the offences
involving commercial quantity. In matters
under the N.D.P.S. Act, a reverse onus is
placed on the accused to substantiate that
he is not guilty of the offences charged.
The principles with regard to bail in such
cases are no longer res nova, as held in the
judgement of this Court dated 5.3.2020
passed in Crl. Misc. Bail Application No.
3515 of 2020 ( Shailendra Kumar Gupta
@ Shailu Vs. State of U.P.). In the
notification specifying small quantity and
commercial quantity as published in the
Gazette of India dated 19.10.2001, the
commercial quantity of 'ganja' is shown at
sl. no. 55 as 20 kg. The amount allegedly
recovered from the vehicle is 150 kg. It is
reiterated that whether the provisions of
Standing Instruction No. 1 of 1988 were
duly complied with or not while taking
samples on recovered of the narcotic drug
made from the vehicle, is a question of fact,
that can be looked into during trial. The
Court would be circumspect to look into
disputed questions of fact in cases relating
to bail in view of provisions of Section
37(1)(b) of the N.D.P.S. Act where
testimony of witnesses is yet to be recorded
and evidence is yet to be considered.

12. Though, as it appears from the
perusal of the bail order enclosed as
Annexure No.2 to the affidavit filed in
support of the bail application, the coaccused Kullan alias Gulab Singh, who is
also alleged to have jumped off the vehicle
and run away, has been enlarged on bail by
order of this Court dated 22.10.2019 in
Criminal Misc. Bail application No. 43996
of 2019. However, with all due respect, I
am not inclined to subscribe to the view
taken by the learned Judge. In matters
under the N.D.P.S. Act, as observed above,
since a reverse onus is placed on the
accused in view of Section 37(1)(b), no
liberal view can be taken.

13. On perusal of the available record
before this Court, no satisfaction can be
recorded that there are reasonable grounds
for believing that the applicant is not guilty
of such offence. Moreover, the mere
alleged fact that the applicant has no
criminal history, does not, under the facts
of the case, lead to a satisfaction that he is
not likely to commit any offence while on
bail. This bail application , is, accordingly,
rejected.

14. It is clarified that the observations,
if any, made in this order are strictly
confined to the disposal of this bail
6 All. Rajendra Singh & Ors. Vs. State of U.P. & Anr.
5
application and must not be construed to
have any reflection on the ultimate merits
of the case.
----------
(2020)06ILR A5
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.03.2020

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Criminal Revision No. 602 of 2020

Rajendra Singh & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Pradeep Kumar Singh

Counsel for the Opposite Parties:
A.G.A.

A. Final Report and further investigationFinal Report submitted-on the basis of dying
declaration-contention of complainant-that there
was no dying declaration -it is manufactured
and frivolous-intact in the case diary-but Final
Report
was
submitted-statement
of
complainant-not
investigated-Magistrate
rejected final report-with a direction of further
investigation-no illegality.

Criminal Revision dismissed. (E-9)

Held, In the present case death by burn and
injury caused by burn during treatment at
Hospital within nine months of marriage is
there. F.I.R. is with contention of dowry death.
It was investigated. Final report was submitted
and this conclusion was on the basis of
statement made by deceased in her dying
declaration. The contention of complainant was
intact in case diary, but the final report was
submitted. It was submitted by complainant that
this dying declaration was manufactured and
frivolous. There was no dying declaration of
deceased. But this was not investigated by the 4
investigating officer. Under all above facts and
circumstances, final report was rejected with a
direction for further investigation and this order
was with no illegality or irregularity or in
irregular exercise of jurisdiction by Magistrate.
(Para 8)

List of cases cited: -

1. Minu Kumari Vs. State of Bihar, (2006) 4 SCC
399

2. Kaptan Singh Vs. State of Madhya Pradesh
(1997) 4 Supreme 211

3. Sri B.S.S.V.V.V. Maharaj Vs. State of U.P.
1999 Cr.L.J. 3661 (SC)

(Delivered by Hon'ble Ram Krishna
Gautam,, J.)

1. This Criminal Revision u/s 397/401
Cr.P.C. has been filed by Rajendra Singh,
Vimla Devi, Pankaj Singh and Km.
Ranjana against order dated 04.12.2019
passed by learned C.J.M., Chitrakoot, in
Final Report Case No. 406 of 2018 arising
out of Case Crime No. 188 of 2018, u/s
498A, 304B I.P.C. and section 3/ 4 D.P.
Act,
P.S.
Mau,
District
Chitrakoot,
whereby learned Magistrate has rejected
final report and ordered for further
investigation.

2. Learned counsel for revisionists
argued that it was a case of accident,
wherein deceased was taken to hospital and
was hospitalized there at. But unfortunately
she succumbed to above burn injury. Her
dying
declaration
was
recorded
by
Executive Magistrate, wherein nothing
incriminating was against the revisionists
and on the basis of it, final report was
submitted. However, protest petition was
filed by informant and on the basis of
contention of informant, the Magistrate
passed the impugned order. Whereas the
Magistrate was not competent to take
prosecution version at the time of disposal