# Zahid (In Jail) v. Union of India

- **Citation:** (2021) 7 ILRA 292
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-22
- **Case number:** Crl. Misc. Bail Application No. 14291 of 2021
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/zahid-in-jail-v-union-of-india-47088
- **Pages:** 6

## Headnote

(A) Criminal Law - Code of criminal
procedure, 1973 - Section 439 - Narcotic
Drugs
&
Psychotropic
Substances
Act,1985 - Sections 8/29/22 , Section 37 -
Bail on the ground of parity of order -
Offences to be cognizable and nonbailable , Section 50 - search before a
Gazetted Officer or Magistrate - recording
of finding in terms of section 37 of
N.D.P.S. Act is a sine qua non for granting
bail - before granting bail for the offence
under N.D.P.S. Act twin conditions as
provided under Section 37(1)(b) (i) and
(ii) have to be satisfied.(Para -10,11)

Recovered and seized 61000 bottles of 100 ml
each of Phensedyl syrup containing Codeine
Phosphate - serial No. 28 of the list of Narcotics
Drugs & Psychotropic Substances - much more
than the commercial quantity - provisions of
section 37 of Narcotics Drugs & Psychotropic
Substances Act are attracted in this case .(Para
- 9)

HELD:- Neither any reason has been recorded
nor provisions of section 37 of N.D.P.S. Act has
been considered in the said order while granting
bail to the co-accused. The benefit of parity of
order dated 15.06.2021 of co-accused cannot be
given to present applicant. Each and every case
depends on its own facts and a close similarity
between one case and another is not enough,
because even a single significant detail may
alter entire aspect of the case.(Para - 10,12,13)

Bail application on the ground of parity
rejected. (E-6)

List of Cases cited:

## Text

292 INDIAN LAW REPORTS ALLAHABAD SERIES

9. Undoubtedly rights of the accused
are important, but equally important is the
societal interest for bringing the offender to
book and for the system to send right
message to all in the society. Undue
sympathy for offender would be more harm
to justice system to undermine the public
confidence in the efficacy of law.

10. On account of the reasons
mentioned above and considering long
criminal history of the applicant and his
conduct, this Court is of the view that there
is no good ground to release the applicant
on bail at this stage.

11. Accordingly, without expressing
any opinion on the merit of the case, bail
application of the applicant is rejected at
this stage.

12. Copy of this order be sent to the
concerned court below as well as to the
informant of this case within two weeks.
----------

(2021)07ILR A292
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.06.2021

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Crl. Misc. Bail Application No. 14291 of 2021

Zahid ...Applicant (In Jail)
Versus
Union of India ...Opposite Party

Counsel for the Applicant:
Sri Salman Ahmad, Sri Naseem Ahmad

Counsel for the Opposite Party:
Sri Ashish Pandey

(A) Criminal Law - Code of criminal
procedure, 1973 - Section 439 - Narcotic
Drugs
&
Psychotropic
Substances
Act,1985 - Sections 8/29/22 , Section 37 -
Bail on the ground of parity of order -
Offences to be cognizable and nonbailable , Section 50 - search before a
Gazetted Officer or Magistrate - recording
of finding in terms of section 37 of
N.D.P.S. Act is a sine qua non for granting
bail - before granting bail for the offence
under N.D.P.S. Act twin conditions as
provided under Section 37(1)(b) (i) and
(ii) have to be satisfied.(Para -10,11)

Recovered and seized 61000 bottles of 100 ml
each of Phensedyl syrup containing Codeine
Phosphate - serial No. 28 of the list of Narcotics
Drugs & Psychotropic Substances - much more
than the commercial quantity - provisions of
section 37 of Narcotics Drugs & Psychotropic
Substances Act are attracted in this case .(Para
- 9)

HELD:- Neither any reason has been recorded
nor provisions of section 37 of N.D.P.S. Act has
been considered in the said order while granting
bail to the co-accused. The benefit of parity of
order dated 15.06.2021 of co-accused cannot be
given to present applicant. Each and every case
depends on its own facts and a close similarity
between one case and another is not enough,
because even a single significant detail may
alter entire aspect of the case.(Para - 10,12,13)

Bail application on the ground of parity
rejected. (E-6)

List of Cases cited:

1. Sonu Vs Sonu Yadav & anr., AIR 2021 SC 201

2. U.O.I. Vs Prateek Shukla, AIR, 2021 SC 1509

3. Narcotics Control Bureau Vs Laxman Prasad
Soni, etc., Criminal Appeal No. 438-440 of 2021

4. U.O.I. Vs Rattan Mallik @ Habul, 2009 (1)
SCC (Crl) 831

(Delivered by Hon'ble Sanjay Kumar
Singh, J.)
7 All. Zahid Vs. Union of India
293

1. Keeping in view the Pandemic
(COVID-19), the case is taken up through
video conferencing.

2. Heard learned counsel for the
applicant and Mr. Ashish Pandey, learned
Special
Public
Prosecutor
(Narcotics)
appearing on behalf of Union of India
through video conferencing and perused the
material placed on record.

3. By means of this application, the
applicant, who is involved in Case Crime No.
04 of 2021, under sections 8/29/22 of
Narcotic Drugs & Psychotropic Substances
Act, police station N.C.B., district Lucknow,
is seeking enlargement on bail during the
pendency of trial.

4. In nutshell, the facts of this case are
that on 17.01.2021 at about 13.00 O'clock
Intelligence Officer of Narcotics Control
Bureau received a confidential information
from reliable sources that Avnish Singh @
Chhotu
and
Chandan
Kumar
Tiwari,
residents of Jaunpur, hid the illegal stock of
Phensedyl syrup in the go-down, which they
will send to Bengal by two trucks. This
information was conveyed by the Intelligence
Officer
to
the
Superintendent, N.C.B.
Lucknow. Thereafter, a team consisting
officers of N.C.B., Lucknow and S.T.F.
Varanasi was formed to carry out the
operation, which succeeded in apprehending
the accused persons and two trucks bearing
No. UP 53 BT 7304 and RJ 40 GA 0142. On
interrogation,
the
apprehended
accused
persons disclosed their names as Zahid,
Ameen Khan, Chandan Kumar, Jitendra
Prajapati, Brijesh Singh and Jai Singh. The
accused were served with the notice under
section 50 of the Narcotics Drugs and
Psychotropic Substances Act and were
enlightened about their legal rights in
terms of section 50 of N.D.P.S. Act to be
searched before a Gazetted Officer or
Magistrate. They were searched before Circle
Officer, but no incriminating articles were
recovered
from
their
personal
search.
However, on the pointing out of accused
Chandan Kumar from the dumper of truck
bearing No. UP 73 BT 7304, ten cartons of
Phensedyl syrup were recovered. Thereafter,
on search of go-down, 610 packets of Abbott
Company, in which Phensedyl syrup were
kept, recovered. In one packet, 100 plastic
bottles, on which Chlorpheniramine Maleate
&
Codeine
Phosphate
cough
Linctus,
Phensedyl @ New 100 ml, were printed, also
recovered. The weight of bottle was 135 gms.
On analysis the contents of the bottle, it was
found that Codeine Phosphate was mixed,
which comes within the ambit of Narcotics
Drugs and Psychotropic Substances Act. The
aforesaid recovered items were made by
Abbott Health Care Pvt. Ltd., District Solan,
Himachal Pradesh. The quantity of recovered
items was 61000 bottles of 100 ml each.
From truck No. UP 53 B.T. 7304, sack of rice
and from truck No. RJ 40 GA 0142, plywood
were also recovered. Recovery memo was
prepared at the spot following required legal
formalities. On the basis of aforesaid
recovery memo, a case was registered against
the accused persons at Case No. 4 of 21,
under section 8/29/22 N.D.P.S. Act, police
station N.C.B., district Lucknow.

5. Main substratum of argument of
learned counsel for the applicant is that the
applicant is driver of truck bearing No. RJ
40 GA 0142. The co-accused Ameen Khan,
who is the cleaner of the said truck, has
already been granted bail by co-ordinate
Bench of this Court vide order 15.06.2021
in Criminal Misc. Bail Application No.
14601 of 2021, therefore the applicant is
294 INDIAN LAW REPORTS ALLAHABAD SERIES
also entitled to be released on bail on the
ground of parity. It is next submitted by the
learned counsel for the applicant that there
is no recovery from the possession of the
applicant
and
he
has
been
falsely
implicated in this case.

6. Per contra, Mr. Ashish Pandey,
learned
Special
Public
Prosecutor
appearing on behalf of opposite partyUnion of India through Narcotics Control
Bureau, Lucknow, vehemently opposed the
aforesaid submission of learned counsel for
applicant by contending that:

(i) All the six accused persons,
who were involved in this case, were
apprehended at the spot.

(ii) The applicant was having
conscious possession of aforesaid recovery.

(iii) There is no enmity between
officers of Narcotics Control Bureau and
the S.T.F. with the applicant, therefore,
allegation of false implication is without
any basis and against the evidence on
record.

(iv) The huge quantity of 61000
bottles of 100 ml each of Phensedyl syrup
cannot be planted.

(v) The mandatory requirements
as provided under the Narcotics Drugs &
Psychotropic Substances Act have been
followed by the officer concerned.

(vi)
Illicit
trafficking
is
a
organized crime and are done adopting
different modus operandi by a group of
persons.

(vii) All the accused persons of
this case were involved together in the
illicit trafficking with their different role.

(viii) The place of seizure of the
recovery is situated at Faizabad road near
Public Inter College, Shahganj, district
Jaunpur, which is not on the route of West
Bengal.

(ix) The act of the applicant as
well as co-accused comes under the
purview of "illicit traffic" as defined in
section 2 (viii b) (iii) & (iv) of the N.D.P.S.
Act.

(x) In view of section 54 of the
N.D.P.S. Act, presumption shall also be
drawn against the applicant unless the
contrary is proved.

(xi) At this stage, it cannot be
said that applicant is not guilty of alleged
offence.

(xii) So far as bail order dated
15.06.2021 of co-accused Ameen Khan is
concerned, it is submitted by Mr. Pandey
that contention on behalf of Narcotics
Control Bureau/Union of India has neither
been considered nor noted in the order
dated 15.06.2021.

(xiii) Much emphasis has been
given that order dated 15.06.2021 has been
passed without considering the provisions
of section 37 of Narcotics Drugs &
Psychotropic Substances Act, therefore
benefit of parity of such bail order cannot
be extended to the applicant.

(xiv) Lastly, Mr. Ashish Pandey,
learned
Special
Public
Prosecutor
submitted
that
the
case
is
under
investigation and he may be allowed some
short time to file counter affidavit on behalf
of Narcotics Control Bureau to bring on
record the relevant material for proper
adjudication.

7. After having heard the learned
counsel for the parties, I find that the issue
that arises for consideration before this
Court is "as to whether the applicant is
entitled to be released on bail only on the
ground of parity of bail order dated
15.06.2021 of co-accused Ameen Khan".

8. The order dated 15.06.2021 passed
in Criminal Misc. Bail Application No.
7 All. Zahid Vs. Union of India
295
14601 of 2021 is being reproduced hereinbelow:

"Heard learned counsel for the
applicant and Sri Ashish Pandey learned
counsel for Union of India through N.C.B.

It has been contended by the
learned counsel for the applicant that nothing
has
been
recovered
either
from
the
possession of the applicant or from the truck
no. RJ 40 GA 0142 but to the contrary the
applicant is the cleaner of the aforesaid truck
and he is going to Kolkata by the truck in
which the plywood had been uploaded and
the driver has a valid document relating with
the goods and the truck but the applicant has
been falsely implicated in the present case by
the police, the said fact has been mentioned
in para 13 to the affidavit filed in support of
bail application. The applicant has no
criminal history with respect to the N.D.P.S.
Act. It has also been submitted that the
applicant is languishing in jail since
18.01.2021. The applicant has no other
reported criminal antecedent, the said fact
has been mentioned in para 27 to the
affidavit filed in support of bail application.

Learned A.G.A. opposed the prayer
for bail.

Considering
the
nature
of
accusation and the severity of punishment in
case of conviction and the nature of
supporting
evidence,
reasonable
apprehension of tampering of the witnesses
and prima facie satisfaction of the Court in
support of the charge and the applicant is
entitled to be released on bail in this case.

Without expressing any opinion on
the merits of the case let the applicant Ameen
Khan involved in Case Crime No. 4/2021
under Section 8/29/22 N.D.P.S. Act, Police
Station N.C.B, District Lucknow be released
on bail on his furnishing a personal bond
with two sureties each in the like amount to
the
satisfaction
of
magistrate/court
concerned, with the following conditions:-

i) 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.

(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 of the
Indian Penal Code.

(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. 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.

(iv) The applicant shall remain
present, in person, 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.

In case of breach of any of the
above conditions, the court below shall be at
liberty to cancel the bail.

The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad.
296 INDIAN LAW REPORTS ALLAHABAD SERIES

The computer generated copy of
such order shall be self attested by the
counsel of the party concerned.

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."

9. There is no dispute that recovered
and seized 61000 bottles of 100 ml each of
Phensedyl
syrup
containing
Codeine
Phosphate, which finds place at serial No. 28
of the list of Narcotics Drugs & Psychotropic
Substances appended to N.D.P.S. Act, are
much more than the commercial quantity,
therefore, provisions of section 37 of
Narcotics Drugs & Psychotropic Substances
Act are attracted in this case, which is in
addition to section 439 of Cr.P.C. and
mandatory in nature.

10. After perusing the aforesaid bail
order dated 15.06.2021 of co-accused Ameen
Khan, I find that neither any reason has been
recorded nor provisions of section 37 of
N.D.P.S. Act has been considered in the said
order while granting bail to the co-accused
Ameen Khan. It is well settled that recording
of finding in terms of section 37 of N.D.P.S.
Act is a sine qua non for granting bail.

11. In view of Section 37 of the
N.D.P.S. Act, before granting bail for the
offence under N.D.P.S. Act twin conditions
as provided under Section 37(1)(b) (i) and
(ii) have to be satisfied. Section 37 of the
N.D.P.S. Act is quoted herein below:

"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
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."

On account to these two reasons
as well as considering the principle laid
down by the Apex Court in following
resent judgments, the bail order dated
15.06.2021 is not binding upon this Court:

i. Sonu vs Sonu Yadav and
another, reported in AIR 2021 SC 201;
(paragraphs 11 and 12).

ii. Union of India vs Prateek
Shukla, reported in AIR, 2021 SC 1509;
(paragraphs 11 and 13).

iii. Narcotics Control Bureau vs
Laxman Prasad Soni, etc, (Criminal
Appeal No. 438-440 of 2021 decided on
19th April, 2021.

iv. Union of India Vs. Rattan
Mallik @ Habul, reported in 2009 (1) SCC
(Crl) 831 (paragraphs 13 and 14).
7 All. Junaid Vs. State of U.P. & Ors.
297

12. As such, in the light of dictum of
aforesaid judgments of the Apex Court as
well as the reasons mentioned in preceding
paragraph No.10, the benefit of parity of
order dated 15.06.2021 of co-accused Ameen
Khan cannot be given to present applicant.
Accordingly, the submission of learned
counsel for the applicant for granting bail on
the ground of parity of order dated
15.06.2021 is rejected.

13. In the opinion of this Court, each
and every case depends on its own facts and a
close similarity between one case and another
is not enough, because even a single
significant detail may alter entire aspect of
the case.

14. In view of above, it would be
appropriate to grant time to opposite party to
file counter affidavit in the matter.

15. Let a counter affidavit be filed
within four weeks. Two week's time is
allowed to the learned counsel for the
applicant to file rejoinder affidavit thereafter.

16. List this case on 05.08.2021 before
the appropriate Bench for hearing of this case
on merits.
----------
(2021)07ILR A297
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.07.2021

BEFORE

THE HON'BLE AJAY BHANOT, J.

Crl. Misc. Bail Application No. 46998 of 2020

Junaid ...Applicant (In Jail)
Versus
State of U.P. & Ors. ...Opposite Parties
Counsel for the Applicant:
Sri Mohammad Mustafa

Counsel for the Opposite Parties:
G.A., Sri Maya Pati Pandey

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 439 (IA) -
Indian Penal Code, 1860 - Sections 363,
366 , 376(3), 376, 376 AB, 376 DA,
376DB - Service of notice upon the victims
in bail - Special powers of High Court or
Court of Session regarding bail - The
Protection
of
Children
From
Sexual
Offences Act, 2012 - Sections 16/17 ,
Section 33 (7) , 40,45 - The Protection of
Children From Sexual Offences Rules,
20202 - Rule 4(13), 4(14) ,7, (15) - The
Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1995
- Section 3(1)(da), 3(1)(dha) and 3(2)(va)
-
The
Juvenile
Justice
(Care
and
Protection of Children) Act, 2015 - Section
27, 30 - Legal Services Authorities Act,
1987 - Section 6, 7, 8, 12 & 13.

(B) Criminal Law - Time for maturation of
a bail application before it is placed in
court has to be definite - Task of the Court
-
to
achieve
the
overarching
and
underlying legislative intent by integrating
the various statutes into an unified legal
framework - rights of child come to
fruition
after
the
authorities(local
police/SJPU,CWC,DLSA & HCLSC ,District
Magistrate)

perform
their
functions
respectively.(Para - 14,58,59)

(C) Criminal Law - Timeline and procedure
for maturation of bail application - court
has to correlate and balance the mandate
of statutory rights of the victim, with the
imperative of constitutional liberties of
the accused - bail maturation process has
to be conducive to implementation of the
POCSO Act, 2012 read with POCSO Rules,
2020 - Where time period for performance
of
statutory
duties
not
provided
-
authorities are obligated to perform the
duties in a reasonable time frame - held -