AUTAR SINGH, J. - (1.) HEARD Sri Satish Trivedi assisted by Shri Arvind Kumar, learned counsel for the applicant, learned A.G.A. for the State of U.P. on the application for bail of the applicant-accused Badruddin Ansari, son of Hazi Mohd. Jamaluddin, resident of Stuarganj, Mohania, P.S. Mohania, District Kaimoor, State Bihar, in case crime No. 205 of 2009, under section 8/21 of N.D.P.S. Act, P.S. Saiyadraja, District Chandauli and perused the record.
(2.) IT transpires from the record that an F.I.R. was lodged on 8.10.2009 at 15.25 P.M. at P.S. Saiyadraja by S.H.O. Saiyadraja against the applicant Badruddin Ansari with this allegation that on 8.10.2009 the complainant received an information while he alongwith police party was busy in search of wanted criminals. The police party on the basis of information pounced upon the applicant at 13.30 P.M. at Bhatija Morh Crossing in the vicinity of village Raghavpatti Dilliya on pointing out of the informer. The police party then complying with the provisions of Section 50 of N.D.P.S. Act conducted his personal search and recovered heroin weighing 250 grams in a polythene and took a sample of 10 grams from the said heroin for the purpose of sending the same for chemical examination and then a recovery memo was prepared as well as the recovered heroin was sealed in the same polythene. The police then lodged F.I.R. and the accused alongwith recovered article at P.S. concerned. The sample was sent to chemical examiner for analysis and on receipt of analysis report and on completion of investigation the police submitted charge sheet against the applicant in the court. The learned counsel for the applicant has contended that the police took sample of heroin weighing 10 grams from alleged recovered heroin and the same was sent to Chemical Examiner, Ram Nagar, Varanasi, but the weight of the said sample was found to be 7.20 grams therein. It is further contended that on chemical examination of the sample it has been found that out of 7.20 grams heroin content has been found to be 1.4 grams in percentage. The learned counsel for the applicant has also contended that it creates doubt as to whether the sample sent to Chemical Examiner was the same which was taken by the police on the spot because the weight of sample taken by police was 10 grams while the sample received in the chemical laboratory was found to be 7.20 grams. It is further contended that in view of the prosecution case heroin weighing 250 grams is alleged to have been recovered from the possession of the applicant which is below commercial quantity. Moreover, the percentage of heroin in sample has been found to be 1.4 and in view of total quantity of contraband heroin of 250 grams, the actual heroin content in the recovered material comes to 3.5 grams, which is below the minimum quantity and thus the applicant is entitled to bail.
(3.) THE learned A.G.A. for the State of U.P. has contended that all the provisions of N.D.P.S. Act have been complied with by the police at the time of arrest and search of the applicant. Moreover, the police, on completion of investigation, has submitted chargesheet against the applicant on 25.11.2009, on which the learned Magistrate has taken cognizance. The police also tried its level best to procure the witnesses from public, but nobody was found ready to be witness. It is further submitted by learned A.G.A. that the sample of 10 grams was sent to chemical examiner which was in fact not exact 10 grams.;