Avinash Yadav vs Union of India (UOI) and Another

Shiv Shanker, J.—This is the first bail application moved on behalf of the applicant Avinash Yadav, involved in Case Crime No. 8 of 2006, u/s 8/21/27 of N.D.P.S. Act, Police Station Govind Nagar, district Kanpur Nagar.

Heard learned Counsel for the applicant and learned Counsel appearing on behalf of the Union of India, the opposite party No. 1 as well as the learned A.G.A. on behalf of the State, opposite party No. 2.

Learned Counsel for the applicant has submitted that he is quite innocent and he has not committed any offence. There was previous enmity with public witnesses Alam Gir and Mohd. Aftab Alam as well as Constable Maimuddin, posted as Narcotic Drugs Control Bureau, Varanasi, who is the real relative of Alam Gir and Mohd. Aftab Alam. He has been wrongly and illegally implicated in the present case with the help of complainant S.K. Singh. It is further submitted that witnesses Alam Gir and Mohd. Aftab Alam had taken Rs. 1,15,000 from the applicant for the purpose of running the business of leather goods in January, 2005, and thereafter, they have neither established any shop nor they have started the business of leather goods item and grab the amount of Rs. 1,15,000 of the applicant. When the applicant demanded the said amount, on 7.7.2005, both the above witnesses and Constable Maimuddin threatened the applicant and beaten him in Kanpur Nagar at House No. 13/67 Raizvi Road, Kanpur Nagar and on the same day, they wanted to lodge the F.I.R. on 7.7.2005 at Police Station Bekanganj, district Kanpur Nagar but the police of police station Bekanganj have not registered any F.I.R. that is why on 8.7.2005, the applicant moved an application before the higher authorities as well as the Chief Justice of Allahabad High Court, Superintendent of Police, Kanpur Nagar, Inspector General of Police, Kanpur Region, Kanpur. On the application moved by the applicant, the Senior Superintendent of Police, Kanpur Nagar, directed the Circle Officer, Anwarganj, Kanpur Nagar to make inquiry and thereafter on 9.10.2005, Constable Maimuddin and Sri S.K. Gupta, officer N.D.P.S. Control Bureau, Varanasi, as well as Alam Gir and Aftab Alam reached at the house of applicant and forcibly arrested him from his house and detained by complainant officer, N.D.P.S. Bureau, Varanasi, at that time, they have taken the signatures of the applicant on blank papers and released the applicant on 10.10.2005.

Thereafter, the applicant had moved several applications by registered post to the higher authorities. It is further submitted that the original addresses have been knowingly concealed by both the public witnesses in the fard baramdagi to be the public witnesses of the alleged occurrence while there are several documents regarding it, This fact clearly indicates that the alleged so called independent witnesses are well known persons of the applicant. It is further submitted that Alam Gir, the public witness, arranged some heroin weighing about 100 grams and thereafter-aforesaid heroin mixed in some type of powder only for showing the heavy quantity of heroin.

It is further submitted that there is no compliance of Sections 42, 50, 52, 52A, 55 and 57 of N.D.P.S. Act, hence the arrest of the applicant is quite unjust, illegal and making the case doubtful. It is further submitted that the sample from recovered contraband article was sent for chemical examination and according to the report ; it is liable to be deemed that the recovered article is below the commercial quantity. In such circumstances, this bail application is liable to be allowed.

On the other hand, learned Counsels appearing on behalf of the opposite parties have submitted that 1 kg. and 65 grams heroin was allegedly recovered from the possession of the present applicant at the time of his arrest, which are much more than the commercial quantity and the same could not be planted falsely against the applicant. He was involved in carrying the business of heroin and he was arrested with the heroin by the complainant in presence of the public witnesses. According to the huge recovery of the heroin, it is liable to be deemed that the public witnesses and Constable Maimuddin have not falsely implicated him. He could be implicated falsely by showing only 25 grams heroin, which is below commercial quantity. It is further submitted that Section 67 of the N.D.P.S. Act is attracted and prima facie case is made out. Therefore, it is not liable to be denied that the applicant is not guilty and it is also not liable to be deemed that he will not commit again such type of offence after releasing on bail.

Learned Counsel appearing on behalf of the Union of India has relied upon the decision rendered on 22.11.2006 by Hon''ble (Mrs.) Saroj Bala, J, in Criminal Misc. Bail Application No. 18273 of 2005, Yogesh Pal Singh v. State of U.P., wherein it has been observed that the entire recovered contraband article will be considered and the same will not be considered merely on the basis of the sample sent to the chemical examination.

In the present case, 1 kg. and 65 gram heroin had allegedly been recovered from the possession of the present applicant. Therefore, such weight will be treated as recovered contraband article. This quantity of contraband article is more than commercial quantity as notified in the said Act. Therefore, the provision of Section 37 of N.D.P.S. Act is attracted, wherein the burden lies upon the accused regarding such recovery that he is not guilty for the said offence. According to the prosecution version, prima facie case is made out. Therefore, it is not liable to be deemed that he is not guilty of the above offence.

The statement of the applicant was recorded by the arresting officer u/s 67 of N.D.P.S. Act wherein he has himself admitted regarding such recovery from his possession and this statement is admissible in evidence. Sections 25 and 26 of the Indian Evidence Act are not attracted. It is worthwhile to mention here that there is cutting in the date of fard baramdagi. Remand papers have been sent to the higher authorities etc. 1 have perused Annexure-C.A. 1 dated 10.8.2006 which reveals that the applicant was asked for the compliance of Section 50, N.D.P.S. Act. He has refused to do the same. It was endorsed and made his signature upon it by Sri S.K. Singh with dated 10.8.2006. Therefore, this shows that the personal search was made from the applicant on 10.8.2006. Recovery memo Annexure-C.A. 2, reveals that it was prepared on 10.8.2006 and had been signed by S.K. Singh alongwith public witnesses by making endorsement on it. The applicant has also signed upon it alongwith date, i.e., 10.8.2006. It''s bear overwriting on the part of the applicant and not on the part of other officials including the present public witnesses. Annexure-C.A. 3 reveals that the statement of application u/s 67 of the above Act which was also given on 10.8.2006. Arresting memo is also dated 10.8.2006. Remand paper Annexure-C.A. 8 reveals that the date of production before the Magistrate was over written on 10.8.2006. It was initially written 10.8.2006 and later on over writing was made on the date 10.8.2006, by making it 11.8.2006. This shows that the applicant was arrested on 10.8.2006. Thereafter, such papers prepared on the same day by the arresting officer by making the date 10.8.2006, but he could not be produced on the same day and he was produced within twenty-four hours on the next day before the concerned Magistrate on 11.8.2006. Therefore, such over writing was made out in the remand application. On that basis, it is not liable to be deemed that the arrest of the applicant was doubtful. Similar situations are regarding Annexures-C.A. 10 and C.A. 11.

According the expert''s report, the recovered substance was found heroin. Heroin is more injurious to the health of the people and dangerous to life, as its administration will affect to the lives of the several persons of the society. Therefore, the gravity of such offence is more than the offence of murder. In such circumstances, the prima facie case regarding the recovery of 1 kg. and 65 gram heroin is made out. It is not liable to be deemed that he is not liable for the offence according to his statement recorded u/s 67 of the Act. Therefore, it is also not liable to be deemed that he cannot indulge in such type offence after the release on bail in the present case. It is a gang of smugglers wherein other persons, like the present applicant, are also involved. Therefore, there is no force in the arguments made on behalf of the learned Counsel appearing on behalf of the applicant and, as such, the bail application is liable to be rejected.

Consequently, the bail application is hereby rejected.