Allahabad High Court
Israr vs State Of U.P. on 16 March, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 88 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8093 of 2023 Applicant :- Israr Opposite Party :- State of U.P. Counsel for Applicant :- Vikas Sharma Counsel for Opposite Party :- G.A. Hon'ble Sameer Jain,J.
Heard Sri Vikas Sharma, learned counsel for the applicant and Sri Ravi Kant Kushwaha, learned AGA for the State-respondent.
The instant application has been filed seeking release of the applicant on bail in Case Crime No. 28 of 2023, under Sections 8/21/29 NDPS Act, Police Station Fatehpur, District Saharanpur, during pendency of the trial in the court below.
According to the prosecution case, applicant and co-accused Talib were apprehended and it is alleged that from the possession of the co-accused Talib, 394 gm smack was recovered and from the possession of the applicant, 356 gm smack was recovered.
Learned counsel for the applicant submitted that the entire allegations made against the applicant are totally false and baseless and in fact, no contraband was recovered from his possession. He further submitted that although recovery is said to have been made from public place but no public witness was taken. He further submitted that no separate option under section 50 NDPS Act was given to the applicant that if he wants then his search may be taken either before the Gazetted officer or a Magistrate and merely joint option was given which is not permissible. He further submitted that till date, there is no report of chemical analyst which can show that recovered alleged contraband was smack. He further submitted that although in the recovery memo it is mentioned that from nearby scale was called but the name of the person who provided the scale has not been mentioned in the recovery memo and this fact clearly suggests that entire recovery is false and planted. He further submitted that applicant is not having any criminal history and he is in jail in the present matter since 30.1.2023, therefore, applicant may be released on bail.
Per contra, learned AGA opposed the prayer for bail and submitted that from the possession of the applicant 356 gm smack was recovered and it is a commercial quantity and therefore, in view of the provisions of section 37 NDPS Act, applicant is not entitled to be released on bail.
I have heard learned counsel for the parties and perused the record of the case.
From the possession of the applicant 356 gm smack was recovered which involves commercial quantity. Although, applicant submits that provisions of Section 50 NDPS Act have not been complied in its letter and spirit and no separate option was given but from the perusal of the recovery memo, it appears that an option was given to the applicant that if he wants then his search may be given either before the Gazetted Officer or a Magistrate and when he stated that he is ready to give his search even before the Searching Officer then his search was made, therefore, in my view, at this stage, prima facie it appears that provision of Section 50 NDPS Act have been complied. On the basis of other arguments advanced by learned counsel for the applicant neither provision of section 37 of NDPS Act can be dispensed with nor recovery be vitiated.
As from the possession of the applicant, commercial quantity of smack was recovered, therefore, considering the provisions of Section 37 NDPS Act, in my view applicant is not entitled to be released on bail.
Accordingly, the instant bail application stands rejected.
Order Date :- 16.3.2023 Ankita