Prem Shanker alias Nanhey Pahelwan vs State of U.P.

Vijay Kumar Verma, J.—Heard learned Counsel for the applicant, A.G.A. for the State and also perused the record.

The applicant Prem Shankar alias Nanhey Pahelwan by means of this application u/s 439 of the Code of Criminal Procedure (in short, "the Cr. P.C.") has sought his release on bail in Case Crime No. 385 of 2008 u/s 8/21 of N.D.P.S. Act P. S. Aliganj, district Bareilly.

The allegation made in the F.I.R. lodged at P. S. Aliganj (Bareilly) on 19.6.2008 by S. I. Vikas Kumar Saxena, incharge S.O.G., Bareilly, in brief, is that on being apprehended on 19.6.2008, 300 gm. smack was recovered from the accused Prem Shankar alias Nanhey Pahelwan.

The main submission made by learned Counsel for the applicant is that although 300 gm. smack is alleged to have been recovered from the applicant''s possession, but according to the report (Annexure-2), on examination of the said contraband in Forensic Science Laboratory, U.P., Lucknow, it was found heroin and percentage of heroin in the recovered contraband was found 31.25% meaning thereby that actual weight of heroin in the recovered contraband comes 93.75 gm., which is below commercial quantity as per entry 56 of Notification dated 19.10.2001 issued by Central Government and hence the applicant should be enlarged on bail. The contention of the learned Counsel is that only the actual contents of weight of the narcotic drug or psychotropic substance, as the case may be, is relevant for determining whether it would constitute "small quantity" or "commercial quantity" and on the basis of percentage of heroin in the recovered article in present case converted into weight the heroin contents in the total quantity of recovered contraband would be 93.75 gm. only, which is much below commercial quantity. For this contention, reliance has been placed by the learned Counsel on E. Michael Raj v. Intelligence Officer, Narcotic Control Bureau (2008) SCC 558: 2008 (2) ACR 2204 (SC) and State of N.C.T. of Delhi v. Ashif Khan alias Kalu (2009) 2 SCC 54: 2009 (1) ACR 990 (SC).

It is also submitted that there is no criminal history of the applicant, who is languishing in jail since 20.6.2008.

Next submission made by learned Counsel is that no witness of public was called at the time of alleged recovery and after planting contraband on the applicant, he has been falsely roped in this case. It is also submitted that compliance of Section 50 of N.D.P.S. Act was not made at the time of alleged recovery.

The applicant is confined in jail for more than a year. There is no criminal history of the applicant. Therefore, in view of the above mentioned submissions made by the learned Counsel for the applicant and taking into consideration over all facts and circumstances of the case, but without expressing any opinion on merit, the applicant may be released on bail.

Let the applicant Prem Shanker alias Nanhey Pahelwan, son of Har Lal, be released on bail in Case Crime No. 385 of 2008, u/s 8/21 of N.D.P.S. Act, P. S. Aliganj, district Bareilly on his executing a personal bond of Rs. 40,000 and furnishing two sureties each in the like amount to the satisfaction of the Court concerned and executing an undertaking in the following terms:

The applicant shall not tamper with prosecution evidence by intimidating the witnesses.

He shall cooperate with investigation and speedy trial.

He shall not indulge in any criminal activity or commission of any crime after being released on bail.

On violation of any of the aforesaid conditions, the prosecution would be at liberty to move application for cancellation of bail.