- (1.) Heard Sri Dhirendra Kumar Srivastava, learned counsel for the applicant, learned A.G.A.for the State of U.P. This bail application has been filed by the applicant Sanauwar Alam with a prayer that he may be released on bail in Case Crime No. 191 of 2010 under section 8/20 of N.D.P.S.Act, Police Station G.R.P. Mughalsarai, District Chandauli. It is contended by learned counsel for the applicant that according to the prosecution version one polythene plastic bag containing the charas, having the weight of One Kg.100 Grams has been recovered from the possession of the applicant. The recovery was shown from a railway platform. According to the FIR version, the checking was done by the first informant and other police personnel on an information given by Mukhbir khas, at the pointing out of the Mukhbir khas, the applicant and other accused persons were apprehended by the police, who confessed that they were involved in the commission of the offence of theft. There is no independent witness to support the alleged recovery, it is also surprising that the applicant and other co-accused persons confessed that they were having the powder of diazepam using for the purpose of making passengers unconscious and they were apprised of diazepam that it was contraband, their search be made before a Gazetted Officer or Magistrate but the applicant and other co-accused persons requested to make their search by the first informant and others, the option for making the search was not given to the applicant and other co-accused persons in accordance with law. The search made by the first informant is illegal.
(2.) The weighing of the recovered contraband was also not proper, in fact, the weight of the recovered item was not of one Kg. 100 Grams because according to the report of the Public Analyst, 88 grams charas was received for the purpose of Analysis, whereas 100 grams charas was sent for analysis purpose. It also shows that in the same ratio, the weight of the recovered contraband was less than one Kg. The applicant was not having any criminal antecedent, prior to involvement of the applicant in the present case,in such a circumstance, the applicant may be released on bail. In reply of the above contention, it is submitted by learned A.G.A. that in the said checking, the recovery of the charas was made, the applicant was apprised about his right for giving the search before a Gazetted Officer or Magistrate but the applicant opted to be searched by the first informant. 100 Grams Charas sent for analysis, it was found 88 grams, the difference of 12 grams was only because the sample became dried, the analysis was done after considerable period of its recovery. The charas was recovered from the possession of the applicant; it was above the commercial quantity. There is no non-compliance of mandatory provision of the NDPS Act, the applicant may not be released on bail.
(3.) Considering the facts, circumstances of the case, submission made by learned counsel for the applicant and learned A.G.A. it appears that according to the prosecution version, the recovery of one Kg. 100 grams charas has been made from the possession of the applicant, 100 Grams charas was sent to the Public analyst, but according to the report of Public Analyst, its weight was 88 Grams, in such a ratio, the recovered contraband was having the weight of 968 Grams, it was below the commercial quantity and the recovery memo has not been signed by any public witness and without expressing any opinion on the merits of the case, the applicant is entitled for bail. Let the applicant Sanauwar Alam involved in Case Crime No. 191 of 2010 under section 8/20 of N.D.P.S.Act, Police Station G.R.P. Mughalsarai, District Chandauli be released on bail on his furnishing a personal bond and two heavy local sureties each in the like amount to the satisfaction of the Court concerned with the conditions.;