Akram vs State of U.P.

Vijay Kumar Verma, J.—In this bail application, prayer for bail has been made on behalf of accused-applicant Akram, s/o Akhtar Ali, in Case Crime No. 728 of 2008, u/s 8/20 of N.D.P.S. Act, P. S. Kavi Nagar, district Ghaziabad.

Allegations made in the F.I.R. lodged on 6.6.2008 at P. S. Kavi Nagar, district Ghaziabad, by S.I. Sri Ram Bharti, in brief, are that on 6.6.2008 during the course of checking the vehicles and suspected persons by S.I. Sri Ram Bharti, who was accompanied by other police personnel, the applicant was apprehended on suspicion at about 11.00 a.m. and on his personal search, 250gm. brown sugar was recovered in plastic packet from his hand. Further case of the prosecution is that on examination in Forensic Science Laboratory Agra, the seized contraband was found heroin and its weight was found 240.5 gm.

I have heard arguments of Shri Rajiv Kumar Mishra, advocate, appearing for the applicant and A.G.A., for the State at length and perused the entire record carefully.

The main submission made by the learned Counsel for the applicant in support of the bail application was that compliance of Section 50 of N.D.P.S. Act was not made in present case by the arresting officer and hence, the applicant is entitled for bail on this ground alone.

Next submission made by the learned Counsel was that on examination of the alleged seized contraband in Forensic Laboratory, Agra, its weight was found 240.5 gm., which is less than commercial quantity, as commercial quantity of heroin is 250 gm. as per Sl. No. 56 of the table of N.D.P.S. Act.

It was further submitted by the learned Counsel for the applicant that no witness of public was called by the police at the time of alleged search of the applicant and hence, merely on the basis of the statements of police personnel, the applicant cannot be detained further in jail. It was also submitted by learned Counsel that the applicant is in jail since 6.6.2008 and hence, on the ground of long detention period in jail also, the applicant deserves bail.

The bail application has been opposed by the A.G.A. contending that the provisions of Section 50 of N.D.P.S. Act would not be attracted in present case, because search of the accused applicant was not made on the basis of any prior information and the applicant was apprehended all of a sudden during the course of checking the vehicles and suspected persons.

It was further submitted by the learned A.G.A. that although weight of the seized heroin was found less than 250 gm. in Forensic Science Laboratory, but on this ground also, the applicant has not become entitled for bail, as the applicant has not furnished any explanation for keeping said heroin with him. It was also submitted by the learned A.G.A., in this context that in the bail application, it is not stated as to for what purpose the applicant was keeping heroin with him and hence, merely because the seized heroin was less than commercial quantity, the applicant as of right cannot be admitted to bail.

Next submission made by learned A.G.A., was that efforts were made by the arresting officer to call the persons of public to be the witness of search of the applicant, but no person became ready and hence, in the absence of public witnesses, the applicant cannot be released on bail, because the matter of non-joining the persons of public in search of the applicant and its consequence can be considered after evidence by the trial Judge.

Having given my thoughtful consideration to the rival submissions made by the parties counsel, but without expressing any opinion on merit, it is not a fit case for bail. According to the F.I.R., 250 gm. brown sugar was recovered from the applicant, which has been found heroin on examination in Forensic Science Laboratory, Agra. Although on carrying out the weight of seized contraband, it was found slightly less than commercial quantity, but merely on this ground the applicant has not become entitled for bail. The heroin is a dangerous drug. The applicant has not furnished any explanation for keeping such quantity of heroin with him. No purpose whatever for keeping heroin with him by the applicant has been mentioned in the affidavit annexed to the bail application. Therefore, merely because the heroin was found slightly less than commercial quantity on carrying out the weight in Forensic Science Laboratory, the applicant cannot be admitted on bail on this ground.

As regards the compliance of Section 50 of N.D.P.S. Act, I entirely agree with the submission of learned A.G.A., that Section 50 of N.D.P.S. Act would not be attracted in present case, because search of the applicant was not made on the basis of any prior information and he was apprehended by the police during the course of checking the vehicles and suspected persons. In this context, reference may be made to the decision of the Constitution Bench of Hon''ble Apex Court in State of Punjab v. Baldev Singh XXXIX 1999 ACC 349: 1999 (2) ACR 1694 (SC) . Reference in this regard may be made to the case of Bharatbhai Bhagwanjibhai Vs. State of Gujarat, also, Hon''ble Apex Court has held that if search or seizure is made on suspicion by reason of the fact that the accused started running on seeing the patrolling party and there was no prior information to the police officer making arrest regarding commission of the offence under N.D.P.S. Act, then in such case provisions of Section 50 of N.D.P.S. Act are not applicable. In present case also, the applicant is said to have been apprehended without any prior information regarding the commission of offence under N.D.P.S. Act at the time when he allegedly started running seeing the police personnel on the alleged date, time and place. Therefore, on the basis of alleged non-compliance of Section 50 of N.D.P.S. Act, no benefit can be extended to the applicant in the matter of granting bail.

In my considered opinion, on the basis of period of detention in jail also, the applicant cannot be admitted to bail in this heinous crime. In this context, reference may be made to the case of Pramod Kumar Saxena v. Union of India and others LXIII 2008 ACC 115: 2008 (3) ACR 3216 (SC), in which the Hon''ble Apex Court has held that mere long period of incarceration in jail would not be per se illegal. If the applicant has committed offence, he has to remain behind bars. Such detention in jail even as an under-trial prisoner would not be violative of Article 21 of the Constitution.

For the reasons mentioned hereinabove, the bail application of the applicant Akram is hereby rejected.

The trial court concerned is directed to conclude the trial of the applicant as early as possible making sincere efforts and avoiding unnecessary adjournments.

The office is directed to send a copy of this order within a week to the trial court concerned for necessary action.