Decided on May 04,2016

The State of Gujarat Appellant
Chirag Suryakant Shah Respondents


Dharam Chand Chaudhary, J. - (1.) Petitioner is an accused in FIR No. 86/16 registered under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act' in short) in Police Station, Indora, District Kangra, H.P.
(2.) The police party headed by ASI Rajinder Kumar has nabbed the accused on 2.3.2016 at such a time when he was coming from Meerthal bridge and going towards village Milwan. On seeing the police, he tried to turn back. This has resulted in suspicion that the accused-petitioner may be in possession of "Heroin" a narcotic drug. He was apprehended and his search was conducted after giving him option qua exercise of his legal right of being searched before a nearby Magistrate or a gazetted officer in the presence of the independent witnesses. He allegedly opted for being searched by the police present at the spot. When his search conducted in the presence of independent witnesses Heroin kept in a white coloured polythene pack was recovered from right side pocket of his trouser. On weighing the recovered drug, it was found 1.5 grams including the weight of polythene packet. After resorting to sealing process and seizure of the drug allegedly recovered from the accused-petitioner and also complying with other provisions of the Act, the accused-petitioner was arrested. Since learned Special Judge has dismissed the application he filed for the grant of bail vide Annexure A-1 to this petition, therefore, the accused-petitioner is still in judicial custody.
(3.) Learned Additional Advocate General has strenuously contended that in view of three more cases having been registered against the accused petitioner under the provisions of NDPS Act, whereas in one of the case under the Excise Act he has already been convicted, learned Special Judge, Kangra at Dharamshala has rightly dismissed the application he filed for grant of the bail. On the other hand, learned defence Counsel has come forward with the version that in view of the present is a case of recovery of small quantity of drug allegedly recovered from the accused-petitioner and that as per Section 21 of the Act in the event of he is ultimately held guilty can only be sentenced to imprisonment for a period not exceeding one year, he could have not been detained in custody and rather released on bail.;

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