Allahabad High Court
Bhola Nah vs The Union Of India on 2 July, 2010
Author: Yogendra Kumar Sangal
Bench: Yogendra Kumar Sangal
RESERVED Court No. - 10 Case :- CRIMINAL APPEAL No. - 696 of 2008 Petitioner :- Bhola Nah Respondent :- The Union Of India Petitioner Counsel :- A.P. Mishra Respondent Counsel :- I.B. Singh Hon'ble Yogendra Kumar Sangal,J.
Accused appellant Bhola Nath was convicted by the trial court for the offence under Section 8/21 N.D.P.S. Act and the trial court has awarded sentence to him ten years' R.I. and Rs. one lac fine and in default of payment of fine amount, to further undergo 2 & 1/2 years R.I. This appeal has been filed against this order of the trial court which was admitted for hearing. A prayer was also made on behalf of the accused-appellant to release him on bail during pendency of the appeal.
As per prosecution case on 09.04.2004 at about 3:00 P.M. on the information, Officers of Narcotic Department arranged a raid and accused appellant was apprehended near Rajkiya Inter College, Barabanki having a Bag in his hand. After taking all precautions and giving required information to the accused-appellant when he was searched at about 4:30 P.M., in two packets 250 gms. each Morphine was recovered from his possession which was tested on the spot also. For that accused was not having any authority. Complaint was filed against the accused in the court. Accused was charged to face the trial. After recording statement of the witnesses and the accused-appellant under Section 313 Cr.P.C. giving opportunity of hearing to the parties counsel, learned trial court convicted and sentenced the accused appellant as above.
Heard learned counsel for the parties on the prayer to release the accused-appellant on bail and perused the record.
Learned counsel for the accused-appellant argued that compliance of Sections 50, 67, 52, 52-A, 55 & 57 N.D.P.S. Act. was not made in the matter. Trial court finding is perverse and illegal. Trial court has wrongly believed the alleged confessional statement of the accused appellant before the Officers of the Narcotic Department. Proper procedures for sealing the recovered article and sending the sample for analysis was not followed. It was further argued by the learned counsel for the accused-appellant that alleged sample of recovered article were twice tested by the Laboratory and there was difference in percentage of contraband in the report of the Analysist, which creates doubt on the veracity of the prosecution case. It was also argued on behalf of the appellant that the appellant is in jail from the date of arrest and trial court has wrongly convicted him in the matter.
Learned counsel for the Narcotic Department denied the correctness of the arguments raised on behalf of the appellant and supported the judgment of the trial court and argued that there is no illegality, invalidity and impropriety in the impugned order passed by the leaned trial court. Minor discrepancy and contradictions in the statements of the witnesses and minor variations regarding the percentage of Morphine in the sample does not affect the merit of the case. It is a case where more than commercial quantity of the Morphine was recovered from the possession of the accused which prima-facie shows that accused-appellant was involved in business of the contraband articles and he is not entitled to be released on bail. Learned counsel for the Narcotic Department also cited law of Hon'ble Supreme Court State Vs. Pawan Kumar (2005) 4 SCC 353 where Hon'ble apex Court has laid down as follows :
"Drug abuse is a social malady. While drug addition eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of a country, but illicit money generated by drug trafficking is often used for illicit activities including encouragement of terrorism. It has acquired the dimensions of an epidemic, affects the economic policies of the State, corrupts the system and is detrimental to the future of a country. It is, therefore, absolutely imperative that those who indulge in these kinds of nefarious activities should not go scot-free on technical pleas ..............."
As per prosecution case 500 gms. Morphine in two separate packets, 250 each was recovered from the possession of the accused appellant. Before the Officers of the department he has confessed his guilt. The samples were taken from the recovered article on the spot and sent for analysis by the Narcotic Department. Morphine was found in the article recovered from the possession of the accused. On the request of the accused again the substance was sent for analysis and again Morphine was found by the Analysist in the substance recovered from his possession. It is correct that in two test reports there is variation in percentage of the Morphine but if weight of the Morphine recovered from the possession of the accused is calculated by the two different percentage, even then it is more than 250 gms. which is above the commercial quantity prescribed under the Act. There is also confessional statement of the accused. Learned counsel for the Department argued that it is admissible in the evidence under the provisions of law. He further argued that always on the ground of the accused- appellant hearing in the appeal has been adjourned. Disposal of the appeal never delayed on the application of the Department. Accused is not interested in disposal of the appeal. He may be in jail since long but he is not entitled for any benefit in this regard.
Seeing the facts and circumstances of the case, considering the arguments of both parties' counsel and also taking into consideration the recovery of Morphine above the commercial quantity from the possession of the accused- appellant without going into merit of the case, I am of the view that it will not be proper to release the accused- appellant on bail during pendency of the appeal. Accordingly, his prayer for Bail is hereby rejected.
Order Date :- 2.7.2010 Kaushal