Muhammad Sabbu vs State of U.P.

Vijay Kumar Verma, J.—In this bail application, prayer for bail has been made on behalf of accused-applicant Mohammad Sabbu s/o Vajeer Miyan, in Case Crime No. 447 of 2007, u/s 8/20 of N.D.P.S. Act, P. S. Khadda, district Kushi Nagar.

The allegations made in the F.I.R. lodged on 27.12.2007 at P. S. Khadda, district Kushi Nagar, by S.O. Shamsher Bahadur Singh, in brief, are that on getting information from informer that some persons are carrying ganja in Jeep No. U. P. 52B/1741, the said jeep was stopped by the police on 27.12.2007 at about 1.30 p.m. and four persons including the applicant Mohd. Sabbu were apprehended, who were sitting in Jeep. When search of the cabin of jeep was made, then 21 small and big packets were recovered. On inquiry, the applicant Mohd. Sabbu claimed 50 kg. ganja belonging to him. Other accused also claimed separate quantity of ganja belonging to them. Total 160 kg. ganja was recovered from the jeep, which was seized and the accused persons were arrested.

I have heard Sri Ramesh Chandra, advocate, appearing for the applicant, learned A.G.A. for the State and perused the entire record carefully.

Firstly, it was submitted by the learned Counsel for the applicant that compliance of Section 50 of N.D.P.S. Act was not made, as prior to making search of the jeep, opinion to get to the search made before the Magistrate or Gazetted Officer was not given to the accused persons and search was made by the arresting officer himself, which is not permissible.

It was further submitted that no person of public was called to be the witness of search and hence, merely on the basis of the statements of police personnel, the applicant cannot be detained further in jail. It was also submitted in this context that the applicant is in jail since 27.12.2007 and hence, on the basis of long detention period also, the applicant deserves bail now, as his fundamental right of speedy trial envisaged under Article 21 of the Constitution is being violated.

It was also submitted that entire seized ganja was not sent for examination to Forensic Science Laboratory and hence, on this ground also, the applicant is entitled for bail.

The bail has been opposed by the learned A.G.A. contending that the provisions of Section 50 of N.D.P.S. Act would not be attracted in present case, because ganja was not recovered from personal search of the applicant and it was seized from the vehicle. For this submission, my attention was drawn by the learned A.G.A. towards the decision of Hon''ble Apex Court in State of Haryana v. Jarnail Singh and Ors. LXIX 2004 ACC 473: 2004 (3) ACR 2306 (SC).

It was further submitted by the learned A.G.A. that in the absence of public witnesses, the applicant cannot be released on bail on this ground, as this matter can be considering during trial by the trial Judge.

Having given my thoughtful consideration to the rival submissions made by the parties counsel, and after carefully going through the entire material on record, in this heinous anti-social crime, the applicant does not deserve bail, because ganja which is said to have been recovered by the police was more than commercial quantity. According to the table given in N.D.P.S. Act commercial quantity of ganja is 20 kg., whereas on the pointing out of the applicant, 50 kg. ganja was recovered from the jeep.

It is well-settled law by the catena of decisions of Hon''ble Apex Court and this Court also that Section 50 of N.D.P.S. Act is applicable in case of personal search only and where the contraband is recovered from any vehicle and not from personal search of the accused, then provisions of Section 50 of N.D.P.S. Act would not be applied.

In my considered opinion, the applicants cannot be admitted to bail on the basis of the period of detention in jail also. In this regard, reference may be made to the case of Pramod Kumar Saxena v. Union of India and Ors. 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 Mohammad Sabbu is hereby rejected.

The trial court concerned is directed to conclude the trial of the applicant within six months applying the provisions of Section 309, I.P.C. 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.