RAVINDRA SINGH,J. - (1.) HEARD Sri Manish Tiwary and Sri Ashish Chaudhary, learned Counsel for the applicant and the learned AGA.
(2.) THE applicant has applied for bail in Case Crime No. 407 of 2005 under Sections 18/20 of NDPS Act P.C. Bilari District Moradabad. According to the prosecution version, in the present case, the alleged occurrence has taken place on 13 -4 -2005 at about 9.40 a.m. in the vicinity of the village Haraura. Its FIR was lodged by SHO Sri N.P. Singh at P.S. Bilari on 13 -4 -2005 at 12.35 p.m. According to the recovery memo, the first informant alongwith his associate police personnel were checking the vehicles. They saw the two boxer motor cycle coming from Sahabad in a very high speed. They tried to stop them, then both the riders of those motor cycles stopped the motor cycles and tried to run away towards Sahabad. Under the suspicion, they were arrested by using necessary force at 9.40 a.m. They disclosed their names and address in which one miscreants is the present applicant and another was the co -accused Naim. From the pocket of the Kurta of the applicant, about 350 gm. Heroin was recovered and from the possession of the co -accused, 100 gm. Heroin was recovered. Thereafter, both the applicants were apprised by the police regarding their right to give a search before any gazetted officer but they stated that they had committed a mistake and the recovered powder was the Heroin. They stated that they were coming by taking the same from one Girish son of Balli Singh. They also confessed that they were involved in the business of purchase and sale of the contraband article. It is contended that the arrest of the applicant was all of a sudden so no public witness could be available to become the prosecution witness. It is contended by the learned Counsel for the applicant that in the recovery memo itself, it is mentioned that the recovered Heroin will be weighed at the police station. According to the prosecution version, the recovery memo was made at the place of occurrence, therefore, the weight of the recovered article mentioned in the recovery memo is not reliable, it is based on the presumption and, therefore, it cannot be said that the recovered article is above the commercial quantity or it was of the same quantity as mentioned in the recovery memo. It is further contended that in the present case, there is no compliance of Section 50 of the NDPS Act because the applicant was apprised by the arresting officer that he was having the right to give the search before the gazetted officer which is not sufficient because the applicant was not apprised of his right to give the search before any Magistrate or Gazetted officer as provided by the Section 50 of the NDPS Act also. It is further contended that co -accused Naim, who was arrested alongwith the applicant and from his possession 100 gm. Heroin was recovered, has been released on bail by this Court on 11 -7 -2005 in Cri. Misc. Bail Application No. 12617 of 2005.
(3.) IT is opposed by the learned AGA by submitting that in the recovery memo itself, it is clearly mentioned that from the possession of the applicant 350 Gm. Heroin was recovered and from the possession of the co -accused only 100 gm. Heroin was recovered. In the present case, the contraband article as recovered in a sudden checking. The arresting Officer was not having its prior information, therefore, Section 50 of the NDPS Act will not be applicable and the recovered Heroin is above the commercial quantity and there is no circumstance to plant the same and the case of the applicant is distinguishable with the case of the co -accused Naim.;