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Aman Alias Pappu v. State Of U.P - CRIMINAL MISC. BAIL APPLICATION No. 10255 of 2005  RD-AH 3919 (4 October 2005)
Criminal Misc Bail Application No. 10255 of 2005
Aman alias Pappu...Vs....... State of U.P.
Hon'ble Ravindra Singh, J.
Heard Sri A. Chaturvedi learned counsel for the applicants and learned A.G.A.
This application is filed by the applicant with a prayer that he may be released on bail in case crime no. 71 of 2004, under Section 20 N.D.P.S. Act, P.S. Raipura district Chitrakut.
From the perusal of the record it reveals that the in the present case F.I.R. was lodged by Sri Rama Shanker, S.O. of P.S.Raipura on 30.9.2004 at 12.15 p.m..inrespect of the incident which had occurred on 29.9.2004 at about 11.30 p.m. The distance of the police station is about 1 km. from the place of the occurrence. The F.I.R. was lodged against the applicant and four other co-accused persons. According to prosecution version 1 kg smack was recovered from the possession of the applicant, 1kg smack from possession of co-accuse Ved Prakash alias Chandra Prakash Patel, 1 kg smack from the possession Ayodhya Prasad Patel and 300 grams smack from the possession of co-accused Arvind Yadav and 1 kg smack from the possession of Rakesh was recovered. The total quantity of recovered smack from the possession of the applicant and other co-accused was 4 kg and 300 grams.
According to prosecution version the first informant got reliable information that some interstate gang of smugglers of the contraband article was coming from Allahabad towards Karvi, riding on two motorcycles and they were possessing huge quantity of smack. Therefore, the first informant and other police personnel blocked the road by using a temporary wooden barrier. The applicant and other co-accused persons also came there on the motorcycles. They tried to ran away by leaving the motorcycles, but they were apprehended by the police and they disclosed their names and they also disclosed that they were possessing smack in huge quantity. Thereafter, the first informant apprised about their right to give their search in the presence of a Gazetted Officer or Magistrate and stated that they can be called at the place of the occurrence, if they desire. All the accused persons stated that any Gazetted Officer may be called. Thereafter, information was given to a Circle Officer; Rajapur, then one Jai Prakash Singh Chandel, C.O. Rajapur came at the place of the occurrence in his presence, the search was made and from the plastic bag of the applicant two packets having the weight of 500 grams each smack was recovered and recovery of smack was made from other accused persons also and some smack was taken as sample, which was sealed in matchboxes. The applicant and other co-accused persons disclosed that the some agents brings the smack from Rajsthan and Kolkata and the same is handed over to them at Allahabad and Fatehpur from where they supply the same at the different places.
It is contended by the learned counsel for the applicant that in the present case there is no strict compliance of provisions of Section 50 of the N.D.P.S. Act, because a joint offer was given to the applicant and four other co-accused persons for giving search before the Gazetted Officer or Magistrate. The joint offer is not permissible in law and no individual offer was given to the applicant and other co-accused persons.
In support of this contention the learned counsel for the applicant relied upon the views taken by this court in the case of Sheo Ram Singh Vs. State of U.P., U.P. Crl. Ruling, 2000, page 278 and the view taken by the Punjab and Haryana and Haryana High Court in the case of Nimma Ram Vs. State of Punjab reported in ACC, 1999(39), page 82. It is contended that the quantity of the sample taken has not been mentioned and there is no public witness to support the prosecution story. Even the alleged recovered contraband article was not weighed at the time of recovery. It is further contended that the sample was sealed in matchboxes, but it has not been mentioned in the recovery memo that the empty matchboxes were taken by the police party. It is further contended that the applicant is student of B.Com. Part-II. He has not having any criminal antecedents.
It is opposed by the learned A.G.A. that in the present case the search of the applicant and other co-accused person was made by C.O. (Dy. S.P.), Rajapur, who is a Gazetted Officer. The first informant was having prior information, therefore, when the applicant and other co-accused persons were arrested, they were appraised about their legal right that their search will be made before any Gazetted Officer of Magistrate. If they desire they may be called on the spot, but the applicant and other co-accused persons stated that any Gazetted Officer may be called. Thereafter, Sri Jai Prakash Singh Chandel, Circle Officer (Dy.S.P.), Rajapur was called; who came at the place of the occurrence and in his presence the search was made. Therefore, there is strict compliance of the provisions of Section 50 of the N.D.P.S. Act was made. It is further submitted that from the possession of the applicant a huge quantity of the smack was recovered and they disclosed the weight of the recovered smack and some quantity of smack was also sealed in the presence of the applicant and other co-accused persons. The alleged occurrence had taken place at the odd hours ot a lonely place; therefore, the public witness could not be collected. It is further submitted that the sample was taken and sealed in matchboxes. There is no requirement that in the recovery memo each and every thing be mentioned. It is further submitted that he huge quantity of smack was recovered from the possession of the applicant and other co-accused persons. The recovery of such huge quantity of smack cannot be planted.
After considering the facts and circumstances of the case, the recovery of huge quantity of the smack, submissions made by the learned counsel for the applicant, learned A.G.A. , it will not be proper to express any opinion on the merits of the case, the pleas including the plea of 'joint offer' taken by the learned counsel for the applicant shall be considered by the trial court when the evidence will be adduced, but the rulings cited by the learned counsel for the applicant are not applicable in the instant case, because the facts of the instant case are entirely different from the above mentioned cited cases. Therefore, the applicant is not entitled for bail at this stage.
Accordingly, the bail application is rejected.
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