Allahabad High Court Order

Allahabad High Court Order

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ORDER TITLE : Suresh Singh Kushwaha Vs. State Of U.P. On 05/30/2011 By Allahabad High Court
CORAM : Hon'ble Shri Kant Tripathi,J.


?Court No. - 49

Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 1354 Of 2007

Petitioner :- Suresh Singh Kushwaha
Respondent :- State Of U.P.
Petitioner Counsel :- B.S. Yadav,Chandra Kesh Mishra,Daya Shankar Mishra
Respondent Counsel :- Govt. Advocate,Amarendra Nath Singh

Hon'ble Shri Kant Tripathi,J.
This Is The Second Bail Application Moved On Behalf Of The Appellant Suresh Singh Kushwaha. The First Bail Application Was Rejected On 11.10.2007 By Another Bench Of This Court.
Heard Mr. D.S. Mishra For The Appellant And Mr. Sanjai Kumar Singh And The Learned AGA For The Respondent And Perused The Record.
Mr. D.S. Mishra Submitted That The Court While Rejecting The First Bail Application, Had Directed For Preparation Of Paper Book Within Six Weeks And Also For Listing The Appeal For Final Hearing But Despite That Order, The Appeal Could Not Be Heard On Account Of Heavy Dockets, Therefore,the Appellant Is Languishing In Jail Since Last More Than Four Years And Has Thus Served Out A Substantial Portion Of The Sentence. Mr. Mishra Next Submitted That In Case The Appellant Is Not Released On Bail, The Appeal In Due Course Of Time Would Become Infructuous. Mr. Mishra Further Submitted That No Doubt The Recovered Quantity Of Heroin Was 500 Grams But The Chemical Analyst Found Only 6.5% Heroin In The Recovered Substance, Therefore, The Net Weight Of Heroin Was Only 30.25 Grams, Which Was Less Than The Commercial Quantity, And As Such The Stringent Conditions Provided In Section 37 (1) (b) Of The Narcotic Drugs & Psychotropic Substances Act Are Not Attracted In This Case. More So, The Appellant Is Entitled To The Benefit Of The Judgment Rendered By The Apex Court In E. Michael Raj Vs. Intelligence Officer Narcotic Control Bureau, JT 2008 (4) SC 523. In That Case, The Apex Court Held That Only The Actual Percentage Of The Narcotic Substance Found On Analysis Is To Be Taken Into Account And Not The Entire Mixture Recovered From The Possession Of The Accused. According To Mr. Mishra, The Extraneous Materials, Which Do Not Constitute Heroin, Ought Not To Have Been Taken Into Account By The Learned Trial Court While Deciding The Quantity Of Heroin.
Mr. Sanjai Kumar Singh, On The Other Hand, Submitted That The Notification Dated 18.11.2009 (S.I. 2942 (E)) Issued By The Government Of India Has Provided That Not Only The Net Weight Of Heroin Found On Analysis But The Entire Substance Is To Be Taken Into Account While Deciding The Quantity. He Further Submitted That The Notification Is Not A Fresh Legislation And It Has Merely Clarified The Object Behind The Earlier Notification, Therefore, The Appellant Is Not Entitled To The Benefit Of The Judgment Of The Apex Court In The Case Of E. Michael Raj (supra). It Was Next Submitted That The Notification Dated 18.11.2009 Is Applicable To All The Cases Governed By The Amending Act Of 2001.
In Rebuttal To The Aforesaid Submission Of Mr. Sanjai Kumar Singh, Mr. D.S. Mishra Submitted That The Apex Court Has Already Clarified The Legal Position In The Case Of Harjit Singh V. State Of Punjab, J.T. 2011 (4) SC 100, The Apex Court Has Held That The Notification Dated 18.11.2009 Can Not Be Applied Retrospectively. The Observation Of The Apex Court Made In Para 13.2 Of The Judgement Is Reproduced As Follows:
"However, The Submission Is Not Acceptable As It Is A Settled Legal Proposition That A Penal Provision Providing For Enhancing The Sentence Does Not Operate Retrospectively. This Amendment, In Fact Provides For A Procedure Which May Enhance The Sentence. Thus, Its Application Would Be Violative Of Restrictions Imposed By Article 20 Of The Constitution Of India. We Are Of The View That The Said Notification Dated 18.11.2009 Can Not Be Applied Retrospectively And Therefore, Has No Application So Far As The Instant Case Is Concerned."
Mr. Mishra Further Submitted That A Similar View Has Been Expressed By Another Bench Of The Apex Court In The Case Of Shyam Kumar @ Seth V. Union Of India (Special Leave To Appeal (Criminal) No. 6124 Of 2010). In Shyam Kumar's Case The Apex Court Had Also Taken Into Account The Custody Period Of Four Years Of The Accused While Enlarging Him On Bail.
Mr. D.S. Mishra Lastly Submitted That The Occurrence Of The Present Case Took Place Much Before The Commencement Of The Aforesaid Notification, Therefore, The Notification Dated 18.11.2009 Is Not Applicable To The Facts Of This Case And The Matter Is Liable To Be Governed By E. Michael Raj's Case (supra), Therefore, Mr. Mishra Submitted That The Matter Does Not Require Any Reconsideration By This Court Nor This Court Is Competent To Declare Any Other Law Contrary To The Law Laid Down By The Apex Court.
In My Opinion, Prima Facie, The Aforesaid Submissions Of The Learned Counsel For The Appellant Have Substance, Therefore, It Is Just And Expedient To Exercise The Discretion In Favour Of The Appellant.
Keeping In View The Entire Facts And Circumstances Of The Case And Submissions Of The Learned Counsel For The Parties, The Appellant Suresh Singh Kushwaha Involved In The Criminal Case No. 49 Of 1999, State Vs. Suresh Singh Kushwaha, Under Section 8/21 Of The Narcotic Drugs & Psychotropic Substances Act, Police Station C.B.N. Cell, Ghazipur, Ise Released On Bail During The Pendency Of The Appeal, On His Furnishing A Personal Bond And Two Sureties Each In The Like Amount To The Satisfaction Of The Court Concerned, And Also Subject To The Following Conditions:
1. The Appellant, If So Required, Shall Attend This Court According To The Conditions Of The Bond Executed By Him;
2. The Appellant Shall Not Commit Any Offence Similar To The Offence Of Which He Has Been Convicted;
In Case Of Breach Of Any Of The Above Conditions, The Bail Shall Be Liable To Be Cancelled.
The Realisation Of The Fine Shall Remain Stayed During Pendency Of The Appeal, Provided The Appellant Deposits Thirty Per Cent Of The Fine Within One Month.
On Acceptance Of Bail Bonds And Personal Bond, The Lower Court Shall Transmit Photo State Copies Thereof To This Court For Being Kept On The Record Of This Appeal.
List The Appeal For Final Hearing In Due Course.

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