Ram Sharan Alias Bhaiji vs State of U.P.

Bala Krishna Narayana, J.—Heard learned Counsel for the Appellant, learned A.G.A and perused the impugned judgment as well as lower Court record.

The Appellant upon being convicted for offence punishable u/s 20(ii)(c) of N.D.P.S. Act is seeking enlargement on bail during the pendency of appeal. Learned Counsel for the Appellant contended that as per the prosecution version about 2 kg Charas was recovered from the Appellant''s possession. Two samples of 50 grams each were drawn from the articles recovered from the Appellant and were kept in two different packets. Thereafter, the samples as well as the remaining charas were sealed and signatures of the Appellants were obtained on the seals of the samples as well as on the seal of the packet in which the remaining articles were kept.

Learned Counsel for the Appellant next contended that as per the report of the chemical analyst the sample which was received by him did not contain the signature of the Appellant, but it contained the signature of one Sri P.C. Tiwari, S.I. who was neither the member of the police party which had arrested and searched the Appellant nor he was examined during investigation. This fact was admitted by Sri Pramod Shanker Shukla, S.I., P.W.-1 who had arrested the Appellant and upon search recovered contraband articles from him. In his evidence Sri P.K. Shukla also admitted that neither the seal contained on the samples nor the seal put on the bag containing the remaining articles from the Appellant bore his signature or the monogram of the concerned police station.

Learned Counsel for the Appellant further submitted that the finding recorded by the court below that 2 kg. charas was recovered from the Appellant''s possession by placing reliance upon the report of the chemical analyst of the sample which did not bear the signature of the Appellant and his consequent conviction on the basis thereof cannot be sustained, as the prosecution had miserably failed to prove by any cogent evidence that the sample which was sent for chemical analysis was the same which was drawn from the articles allegedly recovered from the Appellant.

Learned Counsel for the Appellant lastly contended Appellant who is in jail since 11.9.2006 has no criminal antecedents in his credit and since thee is no livelihood of this appeal being heard in near future the applicant is liable to be enlarged on bail.

Per contra, Learned AGA opposed the prayer on bail.

After having very carefully examined the submissions made by learned Counsel for the parties and perused the impugned judgment as well as the record I do not find that there is any reasonable ground for believing that the Appellant has committed the offence for which he has been convicted. There is also no material on record which may indicate that in case the Appellant is enlarged on bail, there is any likelihood of Appellant committing any other offence.

In view of the above without expressing any opinion on the merits of the case, the Appellant, Mohd Irfan is released on bail on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned, in S.T. No. 762/2006 arising out of Case Crime No. 137 of 2006 u/s 20(ii)(C) of N.D.P.S. Act, P.S.G.R.P., Agra Cantt, District-Agra.

Realization of fine shall remain stayed.