Ram Sajiwan @ Chela vs State of U.P.

Vijay Kumar Verma, J.—In this bail application, prayer for bail has been made on behalf of accused applicant Ram Sajiwan @ Chela, s/o Vindeshwari Pasi in case Crime No. 281 of 2008, under section 21/22 NDPS Act, P.S Pipari, District Kaushambi.

According to the FIR lodged on 21.11.2008 at P.S. Pipari, District Kaushambi, the allegations, in brief, are that on 21.11.2008 during the course of checking the vehicles and suspected persons by SI Shail Kumar Singh, accompanying with other police personnel, the applicant accused Ram Sajiwan was apprehended on suspicion at about 7.00 p.m. and on his personal search about 850 gm. intoxicating powder was recovered from his pockets in two plastic polythene. The seized intoxicating powder on examination in Forensic Science Laboratory Varanasi was found Diazepam vide report dated 20.02.2009 (Annexure SCA1 to the supplementary counter affidavit dated 7th April 2009).

I have Heard arguments of Sri Shamsher Singh Advocate, appearing for the applicant and AGA for the State at length and perused the entire record carefully.

4.The main submission made by the learned counsel for the applicant in support of the bail application was that compliance of Section 50 NDPS Act was not made in this case and hence, the applicant is entitled to be released on bail on this ground alone. It was submitted in this context by the learned counsel that option to the accused to get him searched before the Magistrate or gazetted officer was given after making his search by the arresting officer himself, whereas it was obligatory for the arresting officer to give option to the accused to get him searched before Magistrate or gazetted officer prior to making his search. In support of this submission, my attention has been drawn towards certain decisions of Hon''ble Apex Court including the decision of Constitutional Bench in State of Punjab vs. Baldev Singh 1999 (39) ACC 349.

5.Next submission made by the learned counsel was that no witness of public was called by the police at the time of making search of the accused and merely on the basis of the statements of police personnel, the applicant can not be further detained in jail.

6.It was also submitted that there is no criminal antecedent of the applicant and due to village party bandi and enmity, he has been falsely implicated in this case by the police.

7.It was further submitted that compliance of section 55 and 57 NDPS Act was also not made out.

8.Lastly, it was submitted that the applicant is in jail since 21.11.2008 and hence, he should be released on bail now.

9.The AGA on the other hand, opposed the bail application contending that diazepam, which was seized from the applicant was more than commercial quantity and since no explanation for keeping such heavy quantity of diazepam with him has been furnished by the applicant, hence he does not deserve bail in this heinous crime.

Regarding the compliance of section 50 NDPS Act, it was submitted by learned AGA that the applicant was apprehended all of a sudden during the course of checking the vehicles and suspected persons and seizure of the contraband from the applicant was not made on the basis of any prior information and hence the provisions of Section 50 NDPS Act would not be attracted in present case.

It was further submitted by learned AGA that efforts were made by the arresting officer to call public witnesses, but no person became ready to be the witness of search of the applicant and hence no illegality was committed by the arresting officer in making search of the applicant in absence of the public witnesses.

Regarding the compliance of Sections 55 and 57 NDPS Act, it was submitted by learned AGA that this matter can be considered by the trial court after evidence.

Having given my thoughtful consideration to the rival submissions made by learned counsel for the parties, in my considered opinion, it is not a fit case to admit the applicant to bail. Commercial quantity of Diazepam as per table given in NDPS Act is 500 grams, about which there is no dispute. According to the FIR version, 850 grams Diazepam powder is said to have been recovered from the applicant on his personal search, which is more than commercial quantity. The applicant has not furnished any explanation for keeping such quantity of Diazepam with him.

I entirely agree with the submission of the learned AGA that provisions of Section 50 NDPS Act would not be attracted in present case, because the applicant was apprehended all of sudden during the course of checking the vehicles and suspected persons by the police. The Constitutional Bench of Hon''ble Apex Court in the case of State of Punjab vs. Baldev Singh 1999 (39) ACC 349 extensively considered various provisions of the NDPS Act. As regards applicability of Section 50 NDPS Act, the Hon''ble Apex Court in aforesaid decision has held that "if the empowered officer without any prior information as contemplated by section 42 of the Act makes a search or causes arrest of a person during normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted". Reference in this regard may be made to the case of Bharat Bhai Bhagwan Ji Bhai vs. State pf Gujrat AIR 2003 SC 7 also.

Therefore, having regard to over all facts, but without expressing any opinion on merit of the case, the applicant does not deserve bail in this heinous crime. On the basis of period of detention in jail also, the applicant cannot be admitted to bail. In this context reference may be made to the case of Pramod Kumar Saxena vs. Union of India and others 2008 (63) ACC 115, in which the Hon''ble Apex Court has held that mere long period of incarceration in jail would not be perse 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 Ram Sajiwan is hereby rejected.

The trial court concerned is directed to conclude the trial of the applicant as early as possible making sincere efforts 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.