Allahabad High Court
Prashant Paurush vs State Of U.P. on 30 January, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 84 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 57006 of 2022 Applicant :- Prashant Paurush Opposite Party :- State of U.P. Counsel for Applicant :- Satyendra Narayan Singh,Vikas Singh Counsel for Opposite Party :- G.A. Hon'ble Sameer Jain,J.
Heard Sri Satyendra Narayan Singh, learned counsel for the applicant and Dr. S.b.Maurya, learned AGA-I, for the State.
The instant bail application has been moved on behalf of the applicant with the prayer to release him on bail in Case Crime No.397 of 2022, under Section 21/22 of NDPS Act, Police Station Hathras Gate, District Hathras during pendency of the trial.
According to the prosecution case, applicant along with co-accused Akash Paurash was apprehended by the Police on 8.11.2022 and from the possession of applicant 850gm Diazepam powder was recovered and from the possession of co-accused Akash Paurash 1150gm Diazepam powder was recovered.
Learned counsel for the applicant submitted that the entire allegation made against the applicant is totally false and baseless and he was implicated along with his brother by showing false recovery of Diazepam powder. He further submits that at the time of recovery mandatory provisions of Sections 50 and 57 NDPS Act have not been complied with.
He next submitted that admittedly on the prior information applicant was apprehended and no proper compliance of Section 50 NDPS Act was made in the present matter and merely to show its compliance it has been mentioned in the recovery memo that option was given to applicant that if he wants then his search may be taken either before the Magistrate or before the Gazetted Officer but in fact no such option was given to the applicant. He further submitted that as per Section 57 NDPS Act, it is necessary to inform the higher police authority immediately after the arrest of the accused persons but in the present matter it is nowhere mentioned in the recovery memo whether any compliance of Section 57 NDPS Act was done or not.
He further submitted that applicant is not having any criminal history and he has been implicated in the present matter only due to some village rivalry with the connivance of enemies. He further submitted that applicant in the present matter is in jail since 9.11.2022 and there is also non-compliance of instructions issued by the Central Government with regard to sampling of alleged recovered contraband.
Per contra, learned AGA opposed the prayer for bail and submits that from the possession of applicant 850gm Diazepam powder was was recovered which involved commercial quantity, therefore, in view of the provisions of Section 37 NDPS Act, applicant should not be released on bail.
I have heard learned counsel for the parties and perused the record of the case.
From the possession of applicant and co-accused Akash Paurush, the brother of applicant, huge quantity of Diazepam powder was recovered. From the possession of applicant 850gm Diazepam powder was recovered while from the possession of his brother, co-accused Akash Paurush, 1150 Diazepam powder was recovered and commercial quantity of Diazepam powder is 500gm.
Although learned counsel argued that at the time of search, mandatory provisions of Sections 42, 50 and 57 NDPS Act have not been complied with but admittedly recovery was made from a public place, therefore, there is no applicability of Section 42 of NDPS Act and in the present matter provisions of Section 43 NDPS Act will applicable and from the perusal of recovery memo it appears that there is compliance of Section 50 NDPS Act and whether there is substantial compliance of Section 50 NDPS Act or not, it can only be ascertained by the trial court during trail and at this stage no such opinion can be recorded by this Court.
As far as non-compliance of Section 57 and 52A NDPS act with regard to information sent to the higher police authority and with regard to sampling of contraband is concerned, if there is any irregularity committed by searching authority at the time of recovery then, in my view, recovery cannot be vitiated and no definite finding with regard to the same can be given by this Court as this stage.
As there is no material before this Court on the basis of which this Court has reasonable ground to believe that applicant is not guilty , therefore, considering the provisions of Section 37 NDPS Actl, in my view, applicant is not entitled to be released on bail.
Accordingly, the instant bail application is dismissed.
Order Date :- 30.1.2023 SKM