Lokendra vs State of U.P.

Kalimullah Khan, J.—Heard Mr. S.A. Siddiqui holding brief of Mr. Mohd. Ashraf, learned counsel for the appellant applicant, learned AGA and perused the record. The criminal appeal is already admitted and lower Court''s record is available on requisition.

On the point of bail, learned counsel for the applicant has argued that applicant is in jail since 18.01.2008 for recovery of 450 gm of suspected Heroin and a country made pistol of 313 Bore for the keeping of which he had no license. For the said recovery the trial Court vide impugned judgment and order dated 18.01.2010 found him guilty u/s 8 /15 of NDPS Act and u/s 25 of Arms Act and awarded sentence to undergo RI for 10 years along with fine of Rs. One Lac and in default of payment of fine he has to further undergo the sentence of two years imprisonment u/s 8 /15 of NDPS Act, whereas u/s 25 or Arms Act, he was sentenced to undergo RI for three years and to pay fine Rs. 1,000/- and in default of payment of fine, the same sentence of two years was awarded.

He has invited my attention towards noncompliance of Section 50 of NDPS Act. Applicant was not informed of his right to be searched before Gazetted Officer or any Magistrate. The recovery memo contains as to whether or not he chooses to be searched before any Gazetted Officer or Magistrate and this is no compliance of Section 50 of NDPS Act, therefore, entire recovery and the conviction and sentenced are bad in law, therefore, according to him, applicant may be enlarged on bail.

Per contra, learned AGA argued that arresting authority had no prior information. The applicant was arrested on the basis of certain Mukhbiri and the recovery was made from the polythene bag, therefore, the provision of Section 50 NDPS was not attracted. But he has conceded that the said polythene bag containing contraband was recovered from the personal search of the applicant.

The factual position being so and the fact that provision contained u/s 50 of N.D.P.S. Act, 1985 is mandatory. Therefore, its non-compliance entitles the accused to bail irrespective of the fact that he has been held guilty by learned trial Court.

Undisputedly, applicant is in jail since 18.01.2008. He has already remained in jail for more than half of the sentence awarded to him by the learned trial Court. Due to huge pendency of works, there is least chance of his criminal appeal being decided finally in near future.

In case of Thana Singh Vs. Central Bureau of Narcotics, , Hon''ble Supreme Court of India has passed a reportable order with certain directions on the issue in question and observed that on express pronouncement of Hon''ble Apex Court in the case of Supreme Court Legal Aid Committee Representing Undertrial Prisoners Vs. Union of India (UOI) and Others, which held that," where the under trial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum fine of Rupees one lakh, such an under trial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one lakh with two sureties for like amount" finds constrained applicability in respect of cases under the N.D.P.S. Act, in light of Section 37 of the Act.

In view of the facts and circumstances of the case and the legal position quoted above applicant deserves bail. Prayer for bail is, therefore, allowed. Let the appellant/applicant Lokendra be released on bail in Special Session Trial No. 109 of 2008 and Special Session Trial No. 1223 of 2008, arising out of Case Crime Nos. 46 of 2008 and 45 of 2008, under Sections 8 /15 of NDPS Act and 25 of Arms Act, P. S. Modi Nagar, District Ghaziabad on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the Court concerned provided applicant deposits entire amount of fine awarded to him within two months.