- (1.) HEARD Shri Satish Trivedi, learned Senior Counsel assisted by Shri Abhishek Kumar for appellant - Pappu Yadav @ Ravi Singh in support of his prayer for bail in Criminal Case No.33 of 2008 (Case Crime No.288 of 2008) under Sections 8/18 and 8/21 N.D.P.S Act P.S. Saidpur District Ghazipur and learned A.G.A.
(2.) APPLICANT - Pappu Yadav @ Ravi Singhseeks bail in Criminal Case No.33/2008 (Case Crime No.188/2008), under Sections 8/17/18/21 N.D.P.S. Act, P.S. Saidpur, District Ghazipur.
(3.) THE prosecution alleged that upon information received that a Santro vehicle outside the house of one Lallan Yadav, is indulging in the illegal transportation of heroin and opium, the police personnel reached the scene of occurrence, intercepted the vehicle in a "start mode", but upon seeing them, one of them, namely Amar Nath Yadav, a co -accused fled from the scene and other co -accused, namely, appellant/Bhola Gaur, Pappu Yadav, Lallan Yadav and Manish Kumar Yadav, the driver were arrested at the spot. On being interrogated as to what made co -accused run from the scene, appellant is alleged to have stated that he along with other co -accused allegedly possessing heroin and opium. Even though they were informed that it was their statutory right to insist for a search of their person in the presence of a Gazetted Officer/Magistrate, the appellant is alleged to have declined the request. The following recoveries of narcotic/psychotropic substances including the equipments for preparing heroin are alleged to have been made from the accused persons, i.e., 300 gm heroin and 30 kg opium over the thighs of Bhola Gaur; 300 gm heroin and 13 kg opium over the thighs of accused Lallan Yadav and similarly 400 gm heroin and 30 kg opium over the thighs of appellant/Pappu Yadav, all in polythene packets/bags wrapped with a rubber band. It is submitted that in terms of Section 50 of the N.D.P.S. Act, presence of a Magistrate/Gazetted Officer is a must for search of a person possessing narcotic/psychotropic substance and in absence thereof, recovery from the person of applicant is illegal and applicant is liable to be released on bail. He on the strength of the judgment of the Apex Court in the case of Vijaysinh Chandubha Jadeja v. State of Gujarat, 2011 AIR(SC) 77 submits that search of a person without complying the provisons of Section 50 of the Act, renders the recovery illegal. It is finally submitted that appellant is languishing in jail since 4.3.2008 and there is no likelihood of the appeal being heard in the near future.;