- (1.) RAVINDRA Singh, J. Heard Sri J. S. Sengar, learned Counsel for the applicant and the learned AGA.
(2.) THE applicant has applied for bail in Case Crime No. 10 of 2004 under Sections 8/21 of NDPS Act P. S. Jaspura District Banda. According to the prosecution version, the alleged occurrence had taken place on 26-2-2005 at about 12. 30 noon in the vicinity of the village Gareria. The distance of the police station was 6 Km. from the alleged place of occurrence. In the present case, the first informant SI Sanjai Kumar Singh, Incharge of police out post Aliganj alongwith some other police personnel were in search of smacks in area Jaspura. When they were proceedings from village Gareria to Jaspura, they saw a person having a bag hanging on his shoulder, coming on foot towards village Gareria. He was stopped by the police party then he all of a sudden turned back and proceeded towards village Jaspura, then he was arrested. He disclosed his name and address. His bag was open in which 5 plastic bags containing brown colour powder were recovered. Each bag was having the weight of 50 gm. Another plastic bag in which 10 small size packets containing smacks was also recovered. Each packet was having the weight of 2 to 5 gm. One another open plastic bag was also recovered in which 12 Puriya smacks was found then the applicant was interrogated. Her disclosed that all the packets were containing the smacks. Thereafter a black coloured bag was again searched from which Rs. 1,60,250 was also recovered, for which the applicant confessed that it was the amount received by sale of the smacks. Thereafter, the option was placed by the first informant before the applicant that he was having the right to give his search before any Magistrate or before any Gazetted Officer of police. It was replied by the applicant that once the smack and the amount of money collected from its sale has been recovered, there was no need to call any person and he was having confidence the first informant. The applicant was arrested at 12. 30 noon. At the time of arrest and recovery, many persons who were passers by and working in the adjoining fields, came at the place of the occurrence. They were requested to become the witness but they refused. It is further contended that a sample of 50 gm. smacks was taken. It was sealed and the remaining smack was sealed in the original bag. The recovered amount was also sealed in a separate bundle. It is contended by the Counsel for the applicant that in the present case, there is no compliance of Section 50 of NDPS Act because in the present case, first of all search was made and the alleged contravened article alongwith the cash was recovered by the police. After the search and recovery, the option was placed before the applicant in respect of his right to give the search before any Magistrate or Gazetted Officer of the police. It is further contended that according to the prosecution version, the smacks was recovered in many packets but it has been specifically alleged that the recovered contravened from all the packets were collected at one place and it was mixed to make it homogeneous and from that mixture, the sample of 50 gm. contravened article was taken for sending the same for chemical examination.
(3.) IT is further contended that there is no compliance of provisions of Sections 41, 42, 43, 50, 52 and 57 of NDPS Act and there is no public witness to support the prosecution story. IT is further contended that the applicant was not arrested as alleged by the prosecution. He was arrested from his house from where the police party taken away some ornaments and Rs. 3 lacs which were collected by the applicant for the purpose of marriage of Km. Sushila, sister of the applicant, which was scheduled to be held in the month of March, 2005. The police party was misappropriated the rest of the recovered amount and the recovery has been shown only of Rs. 1,60,250. In respect of this fact, a telegram was given by Sri Kailash to S. P. Banda on 26-2-2005 at 4 p. m. in which it was mentioned that on 2-2-2005 at about 2 p. m. the applicant was arrested by the Excise Police from his house and Rs. 1,50,000 and one golden Chain were taken by the police from his house, so there is apprehension of the false implication of the applicant in some criminal case. It is further contended that the applicant belongs to a rich family. He is having 60 bighas of land and all the family members are living jointly. He is graduate and is running a shop of Arhat in his village and he has not been involve in any other case. It is further contended that according to the recovery memo, there was no weighing machine and in such circumstances, the weight of the recovered article is mentioned on the basis of presumption.;