Chandra Shekhar Shivharev vs State of U.P.

Ravindra Singh, J.—Heard Sri J. S. Sengar, learned Counsel for the applicant and the learned A.G.A.

The applicant has applied for bail in Case Crime No. 10 of 2004 u/s 8/21 of N.D.P.S. Act, P.S. Jaspura district Banda.

According to the prosecution version, the alleged occurrence had taken place on 26.2.2005 at about 12.30 noon in the vicinity of the village Gareria. The distance of the police station was 6 Km. from the alleged place of occurrence. In the present case, the first ft informant S.I. Sanjai Kumar Singh, Incharge of police outpost Aliganj along with some other police personnel were in search of smacks in area Jaspura. When they were proceeding from village Gareria to Jaspura, they saw a person having a bag hanging on his shoulder, coming on foot towards village Gareria. He was stopped by the police party then he all of a sudden turned back and proceeded towards village Jaspura, then he was arrested. He disclosed his name and address. His bag was open in which 5 plastic bags containing brown colour powder were recovered. Each bag was having the weight of 50 gm. Another plastic bag in which 10 small size packets containing smacks was also recovered. Each packet was having the weight of 2 to 5 gm. One another open plastic bag was also recovered in which 12 puriya smacks was found then the applicant was interrogated. He disclosed that all the packets were containing the smacks. Thereafter, a black coloured bag was again searched from which Rs. 1,60,250 was also recovered, for which the applicant confessed that it was the amount received by sale of the smacks. Thereafter, the option was placed by the first informant before the applicant that he was having the right to give his search before any Magistrate or before any Gazetted Officer of police. It was replied by the applicant that once the smack and the amount of money collected from its sale has been recovered, there was no need to call any person and he was having confidence in the first informant. The applicant was arrested at 12.30 noon. At the time of arrest and recovery, many persons who were passers bye and working in the adjoining fields, came at the place of the occurrence. They were requested to become the witness but they refused. It is further contended that a sample of 50 gm. smacks was taken. It was sealed and the remaining smack was sealed in the original bag. The recovered amount was also sealed in a separate bundle.

It is contended by the counsel for the applicant that in the present case, there is no compliance of Section 50 of N.D.P.S. Act because in the present case, first of all search was made and the alleged contraband article along with the cash was recovered by the police. After the search and recovery, the option was placed before the applicant in respect of his right to give the search before any Magistrate or Gazetted Officer of the police. It is further contended that according to the prosecution version, the smacks was recovered in many packets but it has not been specifically alleged that the recovered contraband from all the packets were collected at one place and it was mixed to make it homogeneous and from that mixture, the sample of 50 gm. contraband article was taken for sending the same for chemical examination.

It is further contended that there is no compliance of provisions of Sections 41, 42, 43, 50, 52 and 57 of N.D.P.S. Act and there is no public witness to support the prosecution story. It is further contended that the applicant was not arrested as alleged by the prosecution. He was arrested from his house from where the police party took away some ornaments and Rs. 3 lacs which were collected by the applicant for the purpose of marriage of Km. Sushila, sister of the applicant, which was scheduled to be held in the month of March, 2005. The police party has misappropriated the rest of the recovered amount and the recovery has been shown only of Rs. 1,60,250. In respect of this fact, a telegram was given by Sri Kailash to S.P., Banda on 26.2.2005 at 4 p.m. in which it was mentioned that on 2.2.2005 at about 2 p.m. the applicant was arrested by the excise police from his house and Rs. 1,50,000 and one golden chain were taken by the police from his house, so there is apprehension of the false implication of the applicant in some criminal case.

It is further contended that the applicant belongs to a rich family. He is having 60 bighas of land and all the family members are living jointly. He is a graduate and is running a shop of Arhat in his village and he has not been involved in any other case. It is further contended that according to the recovery memo, there was no weighing machine and in such circumstances, the weight of the recovered article is mentioned on the basis of presumption.

It is opposed by the learned A.G.A. by submitting that in this case, the provisions of Section 50 of N.D.P.S. Act will not be applicable because search and recovery was made of the bag. The search and recovery was not made from the skin touched clothes etc. and in a routine checking, it was found that the recovered bag was containing the smack and Rs. 1,60,250 and it was a sudden checking because the police party was not having any prior information. It is further submitted that so far as the question of weighing the recovered contraband articles and making it homogeneous is concerned, it will be considered at the stage of trial when evidence will be adduced. It is further submitted that in the present case, the applicant is involved in selling the smack and the police has recovered a huge amount of Rs. 1,60,250 which was obtained by the applicant from sale of the smack. It is further submitted that so far as the telegram Is concerned, it has no value because the applicant was arrested on 26.2.2005 at 12.30 p.m. and the telegram was sent on the same day at 4.00 p.m. It is after the arrest of the applicant and it has been mentioned in the telegram that the police of excise department has taken away Rs. 1,50,000 from the house of the applicant but in the present case the recovered amount is Rs. 1,60,250, and the applicant was not arrested by the police of Excise Department so, no reliance could be placed on the contents of the telegram. It is further submitted that the police party had requested the people who were present at the time of the alleged occurrence to become the witness of this case but they refused. It is further submitted that the recovered quantity of the contraband smack is above the commercial quantity and there is no circumstance to show that the recovered article was planted, therefore, the applicant is not entitled for bail.

In view of the facts and circumstances of the case, the submissions made by the counsel for the applicant, the learned A.G.A. and without expressing any opinion on the merit of the case, the applicant is not entitled to be released on bail.

Accordingly this bail application is rejected at this stage.