# Shankar Varik alias Vikram v. Union of India Opp. Party 890 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 1 ILRA 889
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-17
- **Case number:** Crl. Misc. Bail Appl. No. 12805 of 2021
- **Bench:** Shekhar Kumar Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shankar-varik-alias-vikram-v-union-of-india-opp-party-890-indian-law-reports-48073
- **Pages:** 6

## Headnote

Sri Ashish Pandey, Sri Pranay Krishna, Sri Ajit
Kumar Srivastava

Narcotic
Drugs
&
Psychotropic
Substances, 1985 - Sections 8, 20 &29 -
recovery of 1025 kg of Ganja-above
commercial quantity-fcat that accused not
in physical possession of contraband-not
enough to conclude that accused is not
guilty-contention of non compliance of
mandatory provision of search and seizure
-question of fact-decided at time of trial.

Bail rejected. (E-9)

List of Cases cited:

## Text

1 All. Shankar Varik alias Vikram Vs. Union of India
889
Court is of the view that the applicant may
be enlarged on bail.

19. The prayer for bail is granted. The
application is allowed.

20. Let the applicant Sumit Kumar
alias Angrej involved in Case Crime No.
98 of 2021 Under sections 302 and 201
I.P.C., Police Station Kheri, District Kheri
be released on bail on his executing a
personal bond and two sureties each in the
like amount to the satisfaction of the court
concerned on the following conditions:-

(1) The applicant will not make any
attempt to tamper with the prosecution
evidence in any manner whatsoever.

(2) The applicant will personally
appear on each and every date fixed in the
court below and his personal presence shall
not be exempted unless the court itself
deems it fit to do so in the interest of
justice.

(3) The applicant shall cooperate in
the trial sincerely without seeking any
adjournment.

(4) The applicant shall not indulge in
any criminal activity or commission of any
crime after being released on bail.

(5) In case, the applicant misuses the
liberty of bail during trial, in order to
secure his presence, proclamation under
section 82 Cr.P.C. is issued and the
applicant fails to appear before the court on
the date fixed in such proclamation, then,
the trial court shall initiate proceedings
against him, in accordance with law, under
Section 174-A of the Indian Penal Code.

(6) The applicant shall remain present,
before the trial court on the dates fixed for
(i) opening of the case, (ii) framing of
charge and (iii) 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.

(7) The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad or certified copy issued from the
Registry of the High Court, Allahabad.

(8) The concerned Court/ Authority/
Official shall verify the authenticity of
such computerized copy of the order from
the official website of High Court
Allahabad and shall make a declaration of
such verification in writing.

21. It may be observed that in the
event of any breach of the aforesaid
conditions, the court below shall be at
liberty to proceed for the cancellation of
applicant's bail.

22. It is clarified that the observations,
if any, made in this order are strictly
confined to the disposal of the bail
application and must not be construed to
have any reflection on the ultimate merits
of the case.
----------

(2022)01ILR A889
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.01.2022

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Crl. Misc. Bail Appl. No. 12805 of 2021

Shankar Varik alias Vikram ...Applicant
Versus
Union of India ...Opp. Party
890 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Applicant:
Sri Bhavya Sahai, Sri Brijesh Sahai (Senior Adv.)

Counsel for the Opp. Party:
Sri Ashish Pandey, Sri Pranay Krishna, Sri Ajit
Kumar Srivastava

Narcotic
Drugs
&
Psychotropic
Substances, 1985 - Sections 8, 20 &29 -
recovery of 1025 kg of Ganja-above
commercial quantity-fcat that accused not
in physical possession of contraband-not
enough to conclude that accused is not
guilty-contention of non compliance of
mandatory provision of search and seizure
-question of fact-decided at time of trial.

Bail rejected. (E-9)

List of Cases cited:

1. U.O.I .Vs Md. Nawaz khan, AIR 2021 SC 447

2. St. Vs Syed Amir Hasnain, (2002) 10 SCC 88

3. U.O.I. Vs Ram Samujh, (1999) 9 SCC 382

4. U.O.I. Vs Aharwa Deen, (2000) 9 SCC 382

5. Megh Singh Vs St. of Pun., 2004 (1) CCSC
337

6. Criminal Appeal no. 154-157 of 2020-St. of
Kerela Vs Rajesh & ors

7. St. of M.P. Vs Kajad , (2001) 7 SCC 673

8. Anil Kumar Yadav Vs St. (N.C.T.) of Delhi &
anr., 2018 91) CCSC 117
(Delivered by Hon'ble Shekhar Kumar
Yadav, J.)

1. Heard Mr. Brijesh Sahai, learned
Senior Counsel assisted by Mr. Bhavya
Sahai, learned counsel for the applicant,
Mr. Ashish Pandey, learned counsel for
Narcotics Control Bureau.

2. This bail application under Section
439 of Code of Criminal Procedure has
been filed by the applicant seeking
enlargement on bail in Case Crime No.12
of 2020, under Section 8/20/29 of Narcotic
Drugs and Psychotropic Substances Act at
Police Station Challani-NCB Lucknow,
District Jhansi.

3. The factual matrix of the present
case is that on 27.05.2020 at about 07.00
AM, upon information that four persons,
namely, Sanjay Kumar Singh, Vinod
Singh, Shankar Varik (applicant-accused)
and Chhote Lal in two Trucks bearing
Registration
No.CG-04
HZ-4685
and
Dumper bearing Registration No.CG-04
JA-9801
are
about
to
come
from
Teekamgarh
towards
Mauranipur
at
Khadiyan Crossing and they are carrying
huge quantity of illegal Ganja, the
informant of NCB with his team alongwith
necessary items (proper kits) for further
action in accordance with provisions of
NDPS Act, reached the spot at about 09.00
AM and started patrolling at Khandiyan
Crossing. It is alleged that in evening at
about 18.30 hrs., the officers of NCB saw
both trucks, which were coming towards
Khandiyan Crossing of Teekamgarh. The
officers of NCB intercepted the Dumper
CG-04 JA-9808 and from the Cavity of
Dumper, huge amount of Ganja weighing
1025 kg has been recovered, which was
kept in 25 plastic gunny bags and upon
testing by DD Kit, the samples tested
positive for Ganja. The said Dumper was
driven by co-accused Vinod Singh and the
applicant was sitting on the truck. The
aforesaid search was conducted in presence
of two independent witnesses, namely,
Chandra Shekhar and Kuldeep and also in
presence of gazetted officer, namely, Dr.
Pradeep Kumar Singh, C.O. Mauranipur,
Jhansi. The aforesaid Dumper was also
seized under Section 60 of NDPS Act. A
notice under section 67 of NDPS Act was
1 All. Shankar Varik alias Vikram Vs. Union of India
891
served upon the accused persons and their
statements were also recorded.

4. Mr. Sahai, learned Senior Counsel
appearing for the applicant has submitted
that
the
applicant
has
been
falsely
implicated in the present case. During lockdown, the applicant went to Jhansi for his
personal work and he did not get any
vehicle to return back to his village at
Chhattisgarh. The applicant was neither
owner of the Dumper nor driver of the
Dumper. The applicant was merely a
passenger in the vehicle in question. He has
further submitted that the applicant has no
knowledge about recovered contraband.
The alleged Dumper, from which the
contraband has been recovered, does not
belong to the applicant. He has further
submitted that neither any recovery has
been made nor any recovery memo has
been prepared on the spot. At the time of
arrest, mandatory provision of Sections 42,
50, 52, 53, 57 of NDPS Act have not been
complied with. He has further submitted
that nothing has been recovered from the
possession of the applicant and the alleged
recovery is false and fabricated. There is no
independent eye witness of the alleged
recovery, which has been shown. He has
further submitted that there is no evidence
on record which shows that applicant was
in conscious possession or constructive
possession of the recovered contraband.
The applicant is having no criminal history.
Several other submissions in order to
demonstrate the falsity of the allegations
made against the applicant have also been
placed forth before the Court. The
circumstances which, according to the
counsel, led to the false implication of the
applicant have also been touched upon at
length. The applicant is in jail since
29.05.2020.

5. Learned AGA for the State as
well as Mr. Ashish Pandey, learned counsel
for NCB have opposed the prayer for bail and
have submitted that the applicant was
arrested on spot. The applicant and other coaccused persons were very much involved in
inter-state trafficking as they themselves have
admitted in their voluntary statement under
Section 67 of NDPS Act, which belie all
statements. He has further submitted that so
far as compliance of Section 50 of NDPS Act
is concerned, the accused persons were
searched in the presence of Dr. Pradeep
Kumar Singh, C.O. Mauranipur, Jhansi, who
is a gazetted officer, hence, Section 50 of
NDPS Act has fully complied with. Recovery
has also been made in presence of two
independent witnesses, namely, Chandra
Shekhar and Kuldeep. He has further
submitted that it is an admitted fact that the
recovery of 1025 kg. Ganja, which is more
than the commercial quantity, has been
recovered from the Dumper in question,
hence, Section 37 of NDPS Act is attracted in
the
present
case,
therefore,
the
bail
application is liable to be rejected.

6. In support of his submission, Mr.
Ashish Pandey, learned counsel for NCB
has relied upon the judgment of Hon'ble
Apex Court in the case of Union of India
through
Narcotics
Control
Bureau,
Lucknow vs. Md. Nawaz Khan passed in
Criminal Appeal No.1043 of 2021 arising
out of SLP (Crl.) No.1771 of 2021 dated
22.09.2021.

7. I have considered the rival
submissions advanced by learned counsel
for the parties and perused the material
available on record.

8. It is evident that on 27.05.2020
during the checking, the vehicle mentioned
892 INDIAN LAW REPORTS ALLAHABAD SERIES
above, Ganja weighing 1025 kilograms was
recovered
from
the
vehicle,
which
admittedly is more than the commercial
quantity, as such, rigors of Section 37 of
the NDPS Act are applicable in the instant
case.

9. This court has considered the recent
case of Union of India Vs Md. Nawaz
Khan, reported in, AIR 2021 SC 447, which
is a case where contraband was concealed
under the bonnet near the wipers of the car
and it was held by Supreme Court that
factum of absence of possession of
contraband by the accused in itself cannot be
sole ground for grant of bail. In paragraph
nos. 20 & 29, it has been said as under:-

"20. Based on the above precedent, the
test which the High Court and this Court are
required to apply while granting bail is
whether there are reasonable grounds to
believe that the accused has not committed an
offence and whether he is likely to commit
any offence while on bail. Given the
seriousness of offences punishable under the
NDPS Act and in order to curb the menace of
drug-trafficking in the country, stringent
parameters for the grant of bail under the
NDPS Act have been prescribed.

29. In the complaint that was filed on
16 October 2019 it is alleged that at about
1400 hours on 26 March 2019, information
was received that between 1500-1700 hours
on the same day, the three accused persons
would be reaching Uttar Pradesh. The
complaint states that the information was
immediately reduced to writing. Therefore,
the contention that Section 42 of the NDPS
Act was not complied with is prima facie
misplaced. The question is one that should
be raised in the course of the trial."

10. The Hon'ble Apex Court further in
the case of Md. Nawaz Khan (supra) in
paragraph nos. 24 & 25 has also stated as
under:

"24. As regards the finding of the High
Court regarding absence of recovery of the
contraband from the possession of the
respondent, we note that in Union of India
vs. Rattan Mallik, a two-judge Bench of
this Court cancelled the bail of an accused
and reversed the finding of the High Court,
which had held that as the contraband
(heroin) was recovered from a specially
made cavity above the cabin of a truck, no
contraband was found in the 'possession' of
the accused. The Court observed that
merely making a finding on the possession
of the contraband did not fulfil the
parameters of Section 37 (1)(b) and there
was non- application of mind by the High
Court.

25. In line with the decision of this
Court in Rattan Mallik (supra), we are of
the view that a finding of the absence of
possession of the contraband on the person
of the respondent by the High Court in the
impugned order does not absolve it of the
level of scrutiny required under Section
37(1)(b)(ii) of the NDPS Act."

11. It is further asserted by the
Hon'ble Supreme Court vide para 25,
referred to above, that finding of the
absence of possession of the contraband on
the person of the accused does not absolve
him of the level of scrutiny required under
Section 37 (1)(b)(ii) of the NDPS Act.

12. Further from the record it is
evident that the prosecution has cited two
independent witnesses, so at this stage
merely on the ground that the accused has
been in custody for more than one and half
years, bail cannot be granted, particularly
when there are serious allegations of
recovery of 1025 kilograms of Ganja,
1 All. Shankar Varik alias Vikram Vs. Union of India
893
which is above the commercial quantity as
per the schedule.

13. Learned counsel for the accused
has not been able to point out anything to
this Court so as to come to conclusion that
the accused is not guilty of the offence. The
fact that accused was not in physical
possession of contraband would not be
enough to conclude that accused is not
guilty. The contention that recovery was
not from conscious possession of the
accused is noted to be rejected in view of
recent decision of Supreme Court in Md.
Nawaz Khan's case (supra).

14. So far as the contention of learned
counsel for the applicant that the arresting
officials
did
not
comply
with
the
mandatory provisions of search and seizure
of narcotics substance as per the provisions
of the NDPS Act is concerned is also a
question of fact which requires to be
decided at the time of trial. It is also a
question of fact as to whether the recovery
was made on the spot or any substantial
delay in taking inventory, photograph and
samples of seized articles as contemplated
in Section 52-A of the said Act would
vitiate the trial or not, can only be decided
during trial on the basis of evidence on
record.

15. In the case of State vs. Syed Amir
Hasnain, (2002) 10 SCC 88, the Hon'ble
Apex Court has held in view of the two
judgments of this Court in Union of India
Vs Ram Samujh, (1999) 9 SCC 382
and Union of India Vs Aharwa Deen,
(2000) 9 SCC 382, even the High Court
would
be
bound by
the
provisions
of Section 37 of the NDPS Act and would
not be entitled to release the accused under
the provisions of the NDPS Act unless the
provisions of Section 37 of the Act are
satisfied.

16. In the case of Megh Singh Vs
State of Punjab, 2004 (1) CCSC 337, the
Hon'ble Supreme Court held that a bare
reading of Section 50 shows that it only
applies in case of personal search of a
person. It does not extend to search of a
vehicle or a container or a bag, or premises.

17. The learned counsel appearing for
the applicant submits that no public witness
was taken by the police in the alleged
recovery proceedings despite the alleged
recovery was made on the Highway,
therefore, this recovery cannot be presumed
to be an impartial recovery. According to
the recovery memo, it is evident that the
recovery was made at night and due to
pandemic prevalent at that time and
seclusion no public witness could be
secured. Apart from this, the law is well
settled that the evidence of a public officer
cannot be thrown only on the ground that
he is a police officer.

18. The accusation in the present case
is with regard to the commercial quantity.
Once the bail is opposed to a person
accused of the enumerated offences, in
case, the Court proposes to grant bail to
such a person, two conditions are to be
mandatorily satisfied in addition to the
normal requirements under the provisions
of the Code of Criminal Procedure, 1973 or
any other enactment, (i) the Court must be
satisfied that there are reasonable grounds
for believing that the person is not guilty of
such offence.

19. In Criminal Appeal No(s) 154157 of 2020 State of Kerala Vs. Rajesh
and others, the Hon'ble Supreme Court has
894 INDIAN LAW REPORTS ALLAHABAD SERIES
held on 24.01.2020 that the expression
"reasonable grounds" means something
more than prima facie grounds, and (ii) that
person is not likely to commit any offence
while on bail. It is the mandate of the
legislature
which
is
required
to
be
followed. The non-obstante clause with
which this Section starts should be given its
due meaning and clearly it is intended to
restrict the powers to grant bail. To check
the
menace
of
dangers
drugs
and
psychotropic
substances
flooding
the
market, the Parliament has provided that
the person accused of the offences under
the Act should not be released on bail
during the trial unless the mandatory
conditions provided under Section 37 of the
Act, 1985 are satisfied.

20. In State of M.P. Vs. Kajad, (2001)
7 SCC 673, the Hon'ble Supreme Court has
held that negation of bail is the rule and its
grants an exception under (ii) of clause (b) of
Section 37(1) of the Act, 1985.

21. In Criminal Appeal No(s) 154-157
of 2020 (Supra) the Hon'ble Supreme Court
has held that liberal approach in the matter of
bail under the NDPS Act, is uncalled for.
Therefore, it is quite clear that an order of bail
cannot be granted in an arbitrary or fanciful
manner. A ratio decidendi of the judgment of
Hon'ble Apex Court in Anil Kumar Yadav
Vs. State (N.C.T.) of Delhi and another,
2018(1) CCSC 117 is that in serious crimes,
the mere fact that the accused is in custody
for more than one year, may not be a relevant
consideration to release the accused on bail.

22. In the light of the facts and
circumstances of the present case, it would be
inappropriate to discuss the evidence in depth
at this stage because it is likely to influence
the trial of accused. But, from the perusal of
the evidences, collected during investigation
so far, prima facie, the involvement of the
accused in the present case cannot be ruled
out. No reason is found to falsely implicate
the applicant/accused. Therefore, there is no
good ground to release the applicant-accused
on bail at this stage. All the contentions raised
by the learned senior counsel for the accused
pertain to the merits of the case and the same
cannot be considered while considering
application for grant of bail. This court is
unable to form an opinion at this stage that
the accused has not committed an offence.

23. In the ultimate conclusion,
considering the facts and circumstances of
the case, gravity of the offence, severity of
punishment, in my opinion, no case for bail is
made out. Accordingly, the bail application is
hereby rejected.

24. It is clarified that the observations
made regarding the bail application is limited
to the decision of the bail application and any
observations made herein shall not effect the
trial of the case.

25. However, it is expected that the trial
court shall make all sincere endeavours to
expedite the proceedings of the trial and
conclude the same as expeditiously as
possible, in accordance with law, within a
period of six months.
----------
(2022)01ILR A894
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.01.2022

BEFORE

THE HON'BLE RAJAN ROY, J.

Civil Revision No. 102 of 2019

Anil Kumar Singh ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties