Anil Sonkar vs State of U.P.

G.P. Srivastava, J.—Heard Sri R. C. Kandpal, learned Counsel for the applicant and learned A.G.A. for the State.

This is second bail application. The first bail application was rejected by this Court on merit vide order dated 3.5.05.

Learned Counsel for the applicant has argued that the fresh ground is that during investigation the Investigating Officer recorded the statement of the eye-witnesses who were member of the police party they stated that the police party did not say to the applicant that under N.D.P.S. Act, he has a right to be searched before the Magistrate or Gazetted Officer. In this connection he has placed reliance C. Ali v. State of Kerala 2000 (1) ACR 347 (SC): 2000 ACC 485 (SC), wherein it was held that the settled position of law is that the person to be searched under the N.D.P.S. Act, 1985, is required to be told about his right u/s 50 before he is searched and that is a mandatory requirement. No presumption to that effect can be raised.

According to the prosecution case as appears from the memo of recovery a police party was going towards Damodar Nagar as soon as reached in front of the house of one Naresh advocate two persons were seen coming on the motor cycle. The motor cycle sliptup and both the persons, when they tried to escape, were apprehended. They informed that they are in possession of charas therefore they were given an open option to be searched before the Magistrate or a Gazetted Officer as required u/s 50 of N.D.P.S. Act. Thereafter they searched the applicant Anil Sonkar. From a yellow colour plastic bag which was held by the applicant in his hand four silly of charas in two pieces were recovered. It is very clear from the prosecution case itself that the recovery was made from the bag held in the hand of the applicant and not from his personal search. Section 50, N.D.P.S. Act is applicable only in the personal search and not in a search of bags and bag held by the accused. Therefore the provision of Section 50, N.D.P.S. Act is not applicable in the instant case. The applicant has not been able to make out a case for bail. The bail application is rejected.