SURJEET KUSHWAHA Vs. UNION OF INDIA

JUDGEMENT

(1.) The present second application for bail has been filed seeking bail in Case Crime No.08 of 2019 under Sec. 8/20 of the N.D.P.S Act Police Station DRI Gomti Nagar District Lucknow. The first application for bail was rejected by a co-ordinate Bench of this Court vide order dtd. 22/9/2021. It is submitted by the learned counsel for the applicant that the applicant is falsely implicated in the above noted case while he is innocent having no concern with the alleged offence. According to the prosecution case set out in the recovery memo that on 10/5/2019 at about 5 am in Deputy Director of DRA, Lucknow Zone was informed that a mini Truck Tata bearing Registration No. RJ 05 GB 5866 coming from Odisa via Jabalpur, Jhansi Highway, Orai, Kanpur, Lucknow to Agra in which contraband article (Ganja) was loaded. On the said information complainant constituted a team and went for raid, on the way at Shaheedpath Tiraha two persons were collected as independent witnesses and reached near Amausi Airport at about 07:30 am. At about 8:45 am mini truck came from Kanpur side and on confirmation the said truck was stopped. The driver of the truck disclosed his identity as Pappu son of Mangal. The person who was sitting along with the driver disclosed his identity as Sridam Adhikari son of Nagen Adhikari. On checking it was found that three persons namely, Ram Prakash son of Dhuri Singh, Chet Ram alias Ram Veer son of Kalyan Singh and Sujeet Kushwaha son of Bhola Prasad Kushwaha were sitting in the back side of the truck in Dala and they relvealed that contraband article (Ganja) is present in the truck. Thereafter DRI team made search of the accused and took them away to the office of DRI at Gomti Nagar. Co- accused Chet Ram had hired an Innova car bearing Registration No. U.P 80 BY 0701 which was being driven by Hari Singh son of Parsadi. On query it was informed that Chet Ram had hired the said Innova car and travelled from Agra to Mandala, from where he boarded on the said truck. When they stopped the car for filling diesel, three persons hired his car and requested to drop them at Agra. Thereupon Chetram agreed. When the vehicle reached at Babina toll plaza at about 00:45 and the vehicle was stopped for payment of toll tax his vehicle was stopped by 10 to 12 persons who enquired their names and address and they were taken to Zonal Office DRI. The Innova car was not seized by the DRI. Signatures of applicant and other co-accused and driver of the truck were obtained on the recovery memo. It is also submitted that the team of DRI seized mobile phone Aadhar card, pancard and meager amount from the possession of the accused persons and 122 packets (Ganja) having weight 650.740 Kg kept in secret cavity of truck. The brother of accused applicant under enquiry regarding the actual fact visited Babina toll plaza and obtained CCTV footage recorded between 00:01 to 01:00 am in the night of 9/10/5/2019.

(2.) It is also submitted that Hari Singh tried to lodged FIR in police Station Fatehpur Sikri but his report was not lodged. He then sent an application to the Senior Superintendent of Police through registered post on 31/5/2019. An application under Sec. 156 (3) Cr.P.C in the court of Judicial Magistrate, Agra on 11/6/2019. The applicant is confined in jail in alleged crime which was not committed by him. Raiding team not complied with with provisions of Ss. 50, 41, 42, 43 of the NDPS Act and the statement under Sec. 67 NDPS Act were forcibly recorded. He had moved an application for appeal under Sec. 167 (1) Cr.P.C which was rejected by the learned trial court. The incriminating contraband material was not sent for forensic science laboratory in contravention of the judgment of Hon'ble Apex Court in Toofan Singh Vs. State of Tamil Nadu reported at (2021) 4 SCC 1. The applicant is a simple villager residing in ancestral village and if he is released on bail he will not misuse the liberty of bail.

(3.) Shri Digvijay Nath Dubey, learned counsel for DRI moved objection against the second bail application on behalf of the DRI and submitted that in the instant case, the officers of DRI intercepted the truck bearing registration No. RJ 05 GB 5866 travelled by five persons including the present applicant which was driven by Pappu. On search 650.740 kg ganja having value of about Rs.97, 61, 100.00 was recovered from the especially built cavity in the said truck. From the analysis of call records of cell phone of accused persons it is divulged that the accused persons were in continuous contact with each other. The involvement of the present applicant is confirmed from the recovery memo dtd. 10/5/2019 and corroborated by the statements of accused record on 10/5/2019 under Sec. 67 of the NDPS Act.