# Yogendra Kumar v. State of U.P

- **Citation:** (2024) 2 ILRA 1320
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-29
- **Case number:** Crl. Misc. Bail Application No. 15239 of 2022
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yogendra-kumar-v-state-of-u-p-51345
- **Pages:** 4

## Headnote

G.A.

Narcotic
Drugs
and
Psychotropic
Substances Act, 1985-Section 50, 52ANon-compliance of Sectiontion 50 NDPS Act- not
been searched by the gazetted officer or by the
magistrate- no independent witness to the
recovery- no other case under NDPS Act-Bail
Application allowed. (E-9)

Cases cited:

## Text

1320 INDIAN LAW REPORTS ALLAHABAD SERIES

11. It needs to be emphasized that non
appearance of witnesses is one very critical
factor but not the sole cause for delays in
trials. Hence, this cause of delay cannot be
looked at in isolation to the exclusion of
infrastructure
which
is
required
for
discharge of judicial functions. For a long
term and enduring solution, a composite
vision has to be adopted and holistic
endeavours have to be made. Mere
presence of witnesses in itself will not be
sufficient to curtail the delays in the trials.
The problem of delayed trials requires that
various elements of judicial infrastructure
have to grow in tandem with the
administrative scheme drawn up by the
Uttar Pradesh Police and the State
Government for compelling appearance of
witnesses.

12.

The
Government,
other
stakeholders as well as the Courts shall
strive
to
meet
all
corresponding
requirements of the Courts; and make
endeavours to upgrade infrastructure so that
witnesses can be duly examined when they
appear before the trial court on the
appointed dates.

13. The directions issued by the
Director General of Police, Government of
U.P. as well as Principal Secretary (Home)
shall be treated as directions of this Court.

Order in Bail Application

14. This is the second bail application.

15. By means of the the bail
application the applicant has prayed to be
enlarged on bail in Case Crime No. 483 of
2020 at Police Station- Dankaur, District-
Gautam Budh Nagar under Sections 498A,
304B, 201, 120B IPC and Section 3/4
Dowry Prohibition Act. The applicant is in
jail since 08.03.2021.

16. The applicant is on interim bail
granted by this Court by order dated
22.05.2023.

17. The applicant is entitled to bail for
the reasons narrated in the order passed this
Court on 22.05.2023.

18. Let the applicant- Jitendra be
granted bail in the aforesaid case crime
number under the same conditions.

19. The bail application is allowed.

20. Government Advocate to send a
copy of this order to Director General of
Police, Government of U.P. and Principal
Secretary(Home), Government of U.P.,
Lucknow.

21. The Court appreciates the
assistance rendered by Shri Ashok Mehta,
learned
Additional
Advocate
General
assisted by Shri Paritosh Kumar Malviya,
learned AGA-I for the State.
----------
(2024) 2 ILRA 1320
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.01.2024

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Crl. Misc. Bail Application No. 15239 of 2022

Yogendra Kumar ...Applicant
Versus
State of U.P. ...Respondent

Counsel
for
the
Applicant:
2 All. Yogendra Kumar Vs. State of U.P.
1321
Sunil Kumar, Akhil Bajpai, Madima Trivedi,
Rakesh Kumar Tripathi

Counsel for the Respondent:
G.A.

Narcotic
Drugs
and
Psychotropic
Substances Act, 1985-Section 50, 52ANon-compliance of Sectiontion 50 NDPS Act- not
been searched by the gazetted officer or by the
magistrate- no independent witness to the
recovery- no other case under NDPS Act-Bail
Application allowed. (E-9)

Cases cited:

1. Bothilal Vs Narcotics Control Bureau, 2023
SCC OnLine SC 498

2. Simarnjit Singh Vs St. of Punjab, 2023 SCC
OnLine SC 906

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

4. Ranjitsing Brahmajeetsing Sharma Vs St. of
Maharashtra, (2005) 5 SCC 294

5. Mohd. Muslim @ Hussain Vs St. of (NCT of
Delhi): 2023 Livelaw (SC)260

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. Heard learned counsel for the
applicant, learned AGA for the State and
perused the record.

2. It is alleged in the prosecution case
that on 21.11.2022 at 5:20 hours, while the
police party was patrolling and reached near
Janjadwapur crossing, one person was coming
from Debiyapur on foot. On seeing the police
personnel, he turned towards Jadwapur road
and when the police tried to speak him, he
started running, thereafter, he was followed and
caught after 30 paces away. After being asked
the reason for running, he confessed his guilt.
Upon being apprised that under NDPS Act he
has option to be searched by some gazetted
officer or the magistrate, he gave his consent to
be searched by the police officials who caught
him. Written consent was taken from him and
after that he was personally searched and bag
held in his hand was also searched. From the
bag, 11 wrappers were found, total weight of
which was found to be 554 grams, out of which
40 gram was taken as a sample and remaining
contraband was sealed.

3. Learned counsel for the applicant
submits that there is total non-compliance of
Section 50 NDPS Act. The applicant has not
been searched by the gazetted officer or by the
magistrate. There is no independent witness to
the recovery. The applicant is languishing in jail
since 21.11.2022. The applicant has explained
his criminal history in para 13 of the bail
application. There is no other case under NDPS
Act against the applicant.

4. Learned counsel for the applicant
further submits that there is total noncompliance of Section 52A of NDPS Act. The
samples have been drawn on the spot and not in
front of the magistrate. Prosecution has not
obtained any certificate from the magistrate as
required under Section 52A of NDPS Act. No
photographs of the substance have been taken.
Even no application has been filed before the
magistrate under sub section 2 of Section 52A
of NDPS Act. The alleged contraband has been
seized and representative samples have been
drawn without the permission of the concerned
magistrate. List of samples so drawn have not
been certified by the magistrate. The
process of drawing the samples is not under
supervision of the magistrate and the entire
exercise has not been certified by the
magistrate.

5. It is further submitted that there is
no possibility of the applicant of fleeing
away after being released from jail or
tampering with the witnesses. In case the
1322 INDIAN LAW REPORTS ALLAHABAD SERIES
applicant is enlarged on bail, he shall not
misuse the liberty of bail.

6. Learned AGA has opposed the bail
application submitting that the applicant
has a criminal history of 9 cases and
therefore, he is not entitled to be enlarged
on bail. However, he could not show
anything from the record that there is
compliance of Section 52A of NDPS Act.

7. Learned counsel for the applicant
in support of his contention has relied on
the judgment of the Supreme Court passed
in the case of "Bothilal v. Narcotics
Control Bureau, 2023 SCC OnLine SC
498". Emphasis is on para 16 of the
judgment. He has further placed reliance on
the judgment of the Supreme Court passed
in the case of "Simarnjit Singh v. State of
Punjab, 2023 SCC OnLine SC 906",
wherein the Court while relying on the
judgment of "Union of India v. Mohanlal,
(2016) 3 SCC 379", has held that drawing
of samples from all the packets at the time
of seizure is not in conformity with the law
laid down by the Supreme Court in the case
of Mohanlal (supra).

8. So far as the criminal history of the
applicant is concerned, he has relied on the
judgment of the Supreme Court passed in
the case of "Ranjitsing Brahmajeetsing
Sharma v. State of Maharashtra, (2005) 5
SCC 294". Emphasis is on para 49 of the
judgment.

9. Perused the record.

10. From perusal of the record, prima
facie it appears that recovery was effected
from polythene carried out by the accused
and allegedly the said polythene contained
554 gram of alprazolam and prima facie
there appears to be a clear non-compliance
of the mandate of Section 52 A of NDPS
Act as drawing of representative samples
have not been done in presence of the
magistrate. There is no record to show that
samples have been enlisted and the
correctness of the list of sample so drawn
have been certified by the magistrate,
neither there are any photographs of the
substance which were taken in presence of
the magistrate, thus, prima facie mandate of
Section 52A(3) NDPS Act is not followed.

11. In view of the law laid down by
the Supreme Court in the case of Bothilal
(supra), recovery made by the prosecution
prima facie becomes doubtful being an act
of violation of Section 52A of NDPS Act,
hence, following the law explained in the
case of Mohd. Muslim @ Hussain Vs.
State of (NCT of Delhi): 2023 Livelaw
(SC)260, the first test of Section 37 of
NDPS Act is satisfied in this case. The
applicant has no criminal history of the
offence under NDPS Act and the criminal
history of rest of the cases cannot be
portrayed as a bar as held by the Supreme
Court
in
the
case
of
Ranjitsing
Brahmajeetsing Sharma (supra), hence, the
second test is also satisfied.

12. Accordingly, in view of the
discussions made herein above, I am of the
opinion that the applicant is entitled to be
enlarged on bail.

13. The bail application is allowed.

14. Let the applicant, Yogendra
Kumar, involved in Case Crime/FIR No.
357/2022, under Sections 8/22 NDPS
Police Station - Sadarpur, District - Sitapur,
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 with the following conditions
2 All. Anil Kumar Mishra Vs. State of U.P.
1323
which are being imposed in the interest of
justice:-

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

(ii) The applicant will not pressurize/
intimidate the prosecution witness.

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

(iv) The applicant shall file an undertaking
to the effect that he shall not seek any adjournment on
the dates 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.

(v) 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 of the Indian Penal Code.

(vi) 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. 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.
----------
(2024) 2 ILRA 1323
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.01.2024

BEFORE
THE HON'BLE KRISHNA PAHAL, J.

Crl. Misc. Bail Application No. 17725 of 2023

Anil Kumar Mishra ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Sri Niraj Kumar Dwivedi, Sri Pradeep Kumar
Singh, Sri Prabhakar Awasthi

Counsel for the Respondent:
G.A., Sri Saurabh Chaturvedi, Sri Shyam Shankar
Mishra, Sri I.K. Chaturvedi, Sri Rajat Sharma

Bail-Allegation- amount of Rs. 34,79,175/- has
been embezzled- FIR lodged regarding the
embezzlement of amount of Rs. 31,39,638/-
only-all the withdrawal has been made through
cheques - no FSL report on record to suggest
that the signatures have been forged-applicant
has no criminal history- grant of bail is a rule
and refusal is an exception. Bail Application
allowed. (E-9)

Cases cited:

1. Emperor Vs H.L. Hutchinson, AIR 1931 All
356

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

1. List has been revised.

2. Heard Sri Prabhakar Awasthi and
Sri Niraj Kumar Dwivedi, learned counsels
for the applicant and Sri I.K. Chaturvedi,
learned Advocate assisted by Sri Rajat
Sharma, learned counsel for the informant
as well as Sri R.P. Patel, learned A.G.A. for
the State and also perused the record.

3. Applicant seeks bail in F.I.R./Case
Crime No. 55 of 2023, under Sections 420,
409, 467, 468, 471 IPC, Police Station
Sujanganj, District Jaunpur, during the
pendency of trial.

PROSECUTION STORY:-

4. As per prosecution story, the
applicant is stated to be the Additional
Clerk in the institution being run by the
informant, who happens to be its manager.
The job of the applicant was to take care of
the documents of the College including
pertaining to the bank accounts in Union