Railway Police Force Constables Not Independent Witnesses: Allahabad High Court Grants Bail To NDPS Act Accused

The Allahabad High Court recently granted bail to an accused under Narcotic Drugs and Psychotropic Substances Act as it noted that the constables of the Railway Police Force, who witnessed the alleged recovery, search, and seizure, cannot be said to be independent witnesses.

The bench of Justice Subhash Vidyarthi observed that although the search and seizure were conducted at a Railway Station, there was no independent witness to the alleged recovery as the constables of the Railway Police Force cannot be said to be independent witnesses.

The case in brief

Essentially, the Court was dealing with the bail plea of NDPS Act accused Aditya Kumar who was booked under Section 8(C)/21/29 of NDPS Act as he was allegedly carrying 358 gms of Heroine.

It was argued by his counsel that the conduct of the N.C.B. Officers in the case was suspicious as they admit that they received the information at Lucknow that the applicant was carrying Heroin from Gaya, Bihar to Bareilly through a Train, which passes through Lucknow however, they chose to apprehend the applicant at Bareilly (about 250 km from Lucknow).

The Counsel further submitted that it was strange on the part of the NCB Team that they traveled the whole night from Lucknow to Bareilly to apprehend the applicant at Bareilly, which is not a natural course of conduct and it raises doubts against their story.

He has further submitted that although the alleged search and seizure was conducted at a Railway Station, which is a public place, filled with independent persons, there is no independent witness to the alleged recovery and the constables of the Railway Police Force were named as witnesses, who can't be said to be independent witnesses.

Analyzing the facts of the present case, the Court found the following facts to be relevant at the stage of granting bail: -

(i) Although the search and seizure were conducted at Bareilly Railway Station there is no independent witness of the alleged recovery.

(ii) The constables of the Railway Police Force cannot be said to be independent witnesses.

(iii) Although it is mentioned in the recovery memo that the search was conducted in presence of a Gazetted Officer, however, the recovery memo does not bear the signatures of the Gazetted Officer.

(iv) The recovery memo claims that in the test and re-test of the substances conducted by the DD kit, both times it was found to be Heroin.

(v) The Intelligence Officer, N.C.B. Zonal Unit Lucknow, has stated on oath that the sample was tested by the Government Laboratory and the report states that the samples under reference answered positive test for Heroin. However, a copy of the said test report has not been filed by the NCB.

(vi) The test report filed by the applicant categorically states that the substance was not found to be Heroin but it was Morphine.

(vii) Heroin and Morphine are different and distinct substances.

Against this backdrop, the Court stressed that the aforesaid facts raise doubts against the prosecution case and it gives rise to a reasonable ground for prima facie believing at this stage that the applicant may not be held guilty of the alleged offences. 

In view of this, the Court granted bail to the accused Aditya Kumar and ordered him to be released on bail on his furnishing a personal bond and two reliable sureties each of the like amount to the satisfaction of the court concerned.

Case title - Aditya Kumar v. Union Of India Through Narcotic Control Bureau, Lucknow [CRIMINAL MISC. BAIL APPLICATION No. - 42918 of 2021]

Case Citation: 2022 LiveLaw (AB) 433

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