- (1.) Heard learned counsel for the appellant Nawab and learned A.G.A on the point of bail in this criminal appeal No. 2847 of 2010 which has already been admitted and the lower court record is available on record. The learned counsel for the appellant has submitted that 1/2 kg heroin was found in possession of accused/appellant for the keeping of which he had no licence. He has been convicted under section 8 /22 of N.D.P.S. Act and sentenced to undergo rigorous imprisonment for 15 years and to pay a fine of Rs. 1.50 lacs and in default of payment of fine the appellant is to undergo further imprisonment for one and half year. He has further submitted that according to prosecution case the appellant and co-accused Rashid are said to have been arrested on 25.7.2007 at about 11.00 a.m. and the F.I.R. was lodged against them under section 8 /22 of N.D.P.S Act along with some other section of Motor Vehicle Act on 25.7.2007 at 1.15 p.m.
(2.) According to him the concerned narcotic drug of 1/2 kg heroin is said to have been recovered from the personal search of the appellant Nawab. He is said to have concealed it in a polythene bag inside his shirt. Therefore, according to section 50 of N.D.P.S Act the mandate of law is that the accused should have been apprised of his right to be searched before any gazetted officer or Magistrate prior to making his search because the arresting authorities had already come to know that the appellant is in possession of narcotic drugs.
(3.) The following points have been urged by him to seek bail to accused/appellant Nawab. (i) There is non-compliance of section 50 of Narcotic Drugs and Psychotropic Substance Act, 1985; (ii) The charges under section 8 /22 of N.D.P.S Act was amended during trial but no opportunity was provided to accused/appellant for further cross-examination of the prosecution witness already examined; (iii) The incriminating circumstance occurred against the appellant during the course of trial and relied on by the prosecution for the purpose of conviction of the appellant were not put to him under section 313 Cr.P.C. Rather a wrong fact on the quantum of recovered article was put which has never been the case of prosecution. (iv) The joint offer is said to have been given by the arresting authorities to both the accused to be searched before gazetted officer or Magistrate while separate offer should have been given. The joint offer is no offer in the eyes of law; (v) The appellant has already served out more than half of the minimum sentence provided for the offence; (vi) Without considering the provision contained under section 32(b) of N.D.P.S. Act, 1985, the learned trial court has arbitrarily awarded sentence of 15 years rigorous imprisonment along with a fine of Rs. 1.5 lac which is much above the minimum sentence provided for the offence alleged and; (vii) Lastly, amongst other point for bail he has submitted that for the recovery of illicit narcotic drugs viz heroin conviction and sentence has been recorded under section 8 /22 of N.D.P.S. Act. Neither F.I.R. was registered nor charge was framed against the appellant nor he has been held guilty under section 8 /21 of the N.D.P.S Act. The conviction and sentence awarded to him is under section 8 /22 of the N.D.P.S Act which provides the punishment for possession/transportation manufacturing etc of Ganja. The possession of Heroin is punishable under section 8 /21 of N.D.P.S. Act. without applying the judicial mind the learned trial court has arbitrarily conducted the trial which culminated into conviction and sentence of the appellant as stated above. Therefore, considering the fact that the criminal appeal cannot be decided in near future due to huge pendency of work, the appellant may be enlarged on bail.;