Pappu Gupta vs State of U.P.

Vijay Kumar Verma, J.—Heard, Sri Ramesh Chandra, advocate appearing for the applicant and A.G.A. for the State and perused the record.

According to the F.I.R. lodged on 27.12.2007 at 3.45 p.m., by the complainant-Shamsher Bahadur Singh, Station Officer of P. S. Khadda, district Kushi Nagar, a case u/s 8/20 N.D.P.S. Act was registered at P. S. Khadda at Case Crime Nos. 445, 446, 447 and 448 of 2007 against four persons namely 1. Iftikhar, 2. Jameer Mian, 3. Muhammad and 4. Pappu Gupta (applicant herein). The allegation in the F.I.R., 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 intercepted by the police on 27.12.2007 at about 1.30 p.m. and four persons including the applicant Pappu Gupta were apprehended, who were sitting in jeep. When search of the cabin of jeep was made, 160 Kgs. ganja was recovered in separate packets. Applicant Pappu Gupta is said to have told that packets containing 30 Kg. ganja belong to him.

The main submission made by learned Counsel for the applicant is that compliance of Section 50 of N.D.P.S. Act was not made, as prior to making search of the jeep, option to get the search made before the Magistrate or Gazetted Officer was not given and search was made by the arresting officer himself, which is not permissible. It was also submitted in this context that compliance of Section 100, Cr. P.C. also was not made.

Next submission is that no such incident as alleged in the F.I.R. had occurred and fabricating a false story, the applicant has been falsely roped in this case.

It is further submitted that there is no criminal history of the applicant, who had come to earn his livelihood from Bihar to Uttar Pradesh, where he has been falsely implicated in this case without any basis.

It is also submitted that no person of public was called by the arresting officer at the time of alleged recovery.

Next submission is that the applicant is in jail since 27.12.2007 and hence, on the basis of long detention period, the applicant deserves bail now, as his fundamental right of speedy trial envisaged under Article 21 of the Constitution is being infringed.

The bail has been opposed by the learned A.G.A. contending that more than commercial quantity of ganja was recovered from the applicant, who belongs to Bihar and is indulging in the profession of selling narcotic drugs in Uttar Pradesh.

Regarding compliance of Section 50 of N.D.P.S. Act, it is submitted by learned A.G.A. that recovery of ganja was made from the vehicle and hence Section 50 of N.D.P.S. Act would not be attracted in this case. For this submission the A.G.A. has placed reliance on the case of State of Haryana v. Jarnail Singh and others, XLIX 2004 ACC 473: 2004 (3) ACR 2306 (SC) and State of Punjab v. Baldev Singh XXXIX 1999 ACC 349: 1999 (2) ACR 1694 (SC).

Narcotic drug (ganja) more than commercial quantity was recovered from the applicant, for which he has not furnished any explanation as to why he was carrying ganja in such huge quantity. Therefore, 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.

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 applicable.

In my considered opinion, the applicant 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 others 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 Pappu Gupta 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.