- (1.) RAVINDRA Singh, J. Heard Shri P. N. Misra, Senior Advocate, assisted by Shri Apul Misra, Shri J. S. Audichya, Shri Sanjay Misra and Shri S. S. Pandey, learned Counsel for the applicant and learned A. G. A.
(2.) THIS application is filed by the applicant Kausher with a prayer that he may be released on bail in case crime No. 86 of 2004, under Section 18/20, N. D. P. S. Act, P. S. Adarsh Mandi, Samli, District Muzzafarnagar. From the perusal of the record it reveals that in the present case F. I. R. was lodged by Shri Udaiveer Singh Yadav, Station Officer, P. S. Adarsh Mandi, Shamli, District Muzaffarnagar on 23-9-2004 at 7 p. m. According to the prosecution version nine bags of poppy straw were recovered from the possession of the applicant. The same quantity was recovered from three other accused persons. The first informant got the information through Mukhbir-Khas that some miscreants, having the bags of poppy straw, are sitting at the tube-well and they are waiting for a vehicle for transporting the same. The first informant and other police personnel proceeded towards the place of occurrence and saw that four persons were sitting separately on the bags of the poppy straw. They were arrested by them. They disclosed their name and addresses. They stated that the bags were containing the poppy straw and each bag was having the weight of 40 kg. Nine bags of poppy straw were recovered from the possession of each accused. They were disclosed their right of giving the search before any Magistrate or the Gazetted Officer as provided by Section 50 of the N. D. P. S. Act. They were asked to give their search before the mentioned officers by producing them before any Magistrate or Gazetted Officer; who may be called at the place of occurrence to take the search. The applicant and other co-accused persons replied that Circle Officer may be called thereafter the information was given to the Circle Officer, Shamli through R. T. set.
(3.) ON that information, Circle Officer, Shri Rahul Mishra, came at the place of occurrence at 1. 30 p. m. on 23-9-2004 who took the search of the applicant and the other co-accused persons. From their possession, nine bag each of the poppy straw, were recovered. An effort was made to collect the public witnesses. Shri Baldhar Singh, Rajveer Singh, Dhramveer Singh and Udaiveer Singh were contacted and they were requested to become the witnesses of the recovery, but they refused. It is further contended that the sample of the recovered poppy straw was taken from each bag and the same was sealed. It is contended by the Counsel for the applicant that in the present case there is no compliance of Section 50 of the N. D. P. S. Act because a joint offer was made in respect of giving the search before any Magistrate or Gazetted Officer. The offer must be individual. It is further contended that even on the prosecution version 36 bags were kept at a place and the co-accused persons were also sitting on those bags, merely by sitting on the bags, it cannot be said that the recovered bags were in the possession of the applicant and the other co-accused persons. It is further contended that he applicant was not possessing the alleged recovered material and there is no evidence to show that the applicant was having ownership or possession of the alleged recovered contraband article.;