- (1.) RAVINDRA Singh, J. Heard Sri Manish Tiwary learned Counsel for the applicant, and the learned AGA.
(2.) FROM the perusal of the record, it reveals that a FIR was lodged against the applicant by Sri Gorakh Nath Pandey, Station Officer of Police Station Gaura Badshahpur on 26-9-2004 at 5. 10 a. m. under Section 8/20 of NDPS Act. The prosecution story in brief is that the first informant got the information through a telegraphic massage that 3 bags of Ganja was loaded in some vehicle. On that information, the first informant and other police personnels moved for the village Kabir Uddinpur and an information was given to the local circle officer with a request to reach at the alleged place of occurrence. All the police persons took the search of each other. Nothing incriminating was from the possession of the first informant and other police persons. By that time, Sri Om Prakash Pandey, Circle Officer, City Jaunpur also reached at the place of occurrence at 2. 40 a. m. In the light of the torch, the applicant, Dhiraj Mishra and Sangeet Mishra were taken out the bags of the Ganja but the applicant was arrested. He disclosed his name as Surendra Mishra in the presence of the Circle Officer. From his possession one bag containing 30 Kg. Ganja was recovered but the co-accused Dhiraj Mishra and Sangeeta Mishra run away from the place of occurrence by leaving their bags at the alleged place of occurrence. The applicant could not show any document, showing that he was having the legal possession of the alleged recovered Ganja. He disclosed that he was doing business of Ganja for his livelihood. The recovered Ganja from the possession of the applicant was made, which was having the quantity of 30 Kg. and 200 gms. The other 2 bags were having the weight of 31 Kg. and 500 gm. And 40 Kg. and 200 gm. Respectively. The police personnels made a request to the public persons for becoming the public witness but none of them become the witness of the recovery. It is contended by the learned Counsel for the applicant that in the present case, there is no compliance of Section 50 of NDPS Act because in the present case, the first informant was having the prior information that the applicant and other co-accused persons were having Ganja. No option was placed before the applicant for giving search before any Gazetted Officer or the Magistrate. The applicant was arrested by the first informant and his search was made.
(3.) IT is opposed by the learned AGA by submitting that in the present case, search was made by Dy. S. P. (Circle Officer) who had reached at the place of occurrence prior to the arrest of the applicant and in such circumstances there was no legal requirement to place the option before the applicant for giving search before the Gazetted Officer of the Magistrate. IT is further contended that the recovery is not supported by any public witness. IT is replied by the learned AGA by submitting that a proper attempt was made to collect the public witness but no public witness was ready to become the witness of the alleged recovery. IT is further contended by the learned AGA that the recovered quantity of the Ganja is too much and it is above the commercial quantity. In view of the facts and circumstances of the case, the submissions made by the Counsel for the applicant and the learned AGA the applicant is not entitled to be released on bail. Accordingly this bail application is rejected at the stage. Bail aplication rejected. .;