Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29231 of 2021 Applicant :- Shailendra Kumar Gupta @ Shailu Opposite Party :- State of U.P.
Counsel for Applicant :- R.B.Pal,Adarsh Bhushan,Shivam Kumar Pal
Hon'ble Jayant Banerji,J.
Heard Sri Adarsh Bhushan, learned counsel for the applicant and Sri M.K. Dwivedi, learned A.G.A. for the State.
This is the second bail application of the applicant who is in jail since 25.11.2019. The FIR was lodged on 24.11.2019 being Case Crime No. 574 of 2019, under Sections 8/21 of Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as the NDPS Act). The first bail application was rejected given the fact that the applicant was allegedly found in possession of more than the commercial quantity of 'charas' and given the provisions of Section 37 (1)(b)(ii) of the provisions of NDPS Act and after considering the case law on the subject.
Learned counsel for the applicant has made two submissions; firstly, in respect of the chemical analysis report of the Forensic Laboratory, Varanasi that has been enclosed as Annexure-12 to the application and, secondly, the order sheet in respect of the trial in the court below.
With regard to chemical analysis report of Forensic Laboratory, it is stated that the sample sent being suspected amount of 'charas' was found to be weighing 8 gms. while in the FIR and recovery memo, it was mentioned that an amount of 9 gms of 'charas' was packed and sent for forensic chemical examination. It is the contended that in view of the discrepancy of 1 gm. in weight appearing in the chemical analysis report, if the entire recovered amount of charas of 1 kg and 17 gms is proportionately taken into consideration, then the weight of substance recovered would actually be below the commercial quantity and as such, the stringent provisions of Section 37 (1) (b)(ii) would not apply in the case of the applicant.
A perusal of the forensic chemical analysis report that has been enclosed as Annexure-2 to the affidavit, it appears that it was issued on 25.2.2020 that is to say, prior to rejection of the first bail application of the applicant. Moreover, in the opinion of the Court, the contention that the weight of the seized 'charas' was less than the commercial quantity only in view of the fact that the material submitted before the Forensic Laboratory was found to be 8 gms and not 9 gms, cannot be given credence. It is not the that the amount of charas recovered was in several separate small bags. As a matter of fact, the FIR itself reflects that the entire amount of charas was recovered from one plastic bag in the possession of the applicant and from that, sample was taken. Under the circumstances, the difference of 1 gms of charas may have been occasioned due to other factors, which have the effect of making the weight of the recovered charas below commercial quantity.
The other contention of the learned counsel for the applicant that the order sheet of the trial reflects that the charges are yet to be framed and that despite direction given by this Court on 5.3.2020 for expediting the trial, the trial is not proceeding expeditiously.
A perusal of the order sheet reveals that the prosecution had submitted the charge sheet and case diary on 18.1.2020. Thereafter, after some dates, the case was repeatedly adjourned due to the covid pandemic. Thereafter, the case was transferred to the court of ADJ-VII under the order of District Judge dated 3.7.2020. Again the trial was adjourned due to lockdown. On 19.1.2020, 3.11.2020 and 21.11.2020, the applicant did not attend the court. From 29.1.2021, the applicant has been appearing before the court below through video conferencing. Certain documents were filed on 18.2.2021. The last date of order in the order sheet is 18.2.2021. Thereafter, it is common knowledge that the second wave of pandemic had started which has now ebbed. Under the circumstances, it cannot be said that trial of the case is being unnecessarily delayed.
Considering the entire facts and circumstances and the contentions of the learned counsel for the applicant, this bail application is rejected. This Court has no reason to doubt that the trial court is taking all steps to proceed with the matter expeditiously.
Order Date :- 29.10.2021 sfa/ (Jayant Banerji, J) Digitally signed by JAYANT BANERJI Date: 2021.10.30 11:45:22 IST Reason: Document Owner Location: High Court of Judicature at Allahabad