R.K.Rastogi, J. - (1.) The applicant Pradeep Kumar has applied for bail in Case Crime No. 20 of 2006, under section 8/20 N.D.P.S. Act , Police Station Dubahar, District Ballia.
(2.) The prosecution case starts with a F.I.R. registered at police station Dubahar on 1.4.06 at 11.30 P.M. on the basis of recovery memo prepared by Siyaram S.O. of that police station. It was stated in the recovery memo that on the aforesaid date he alongwith police party was on petrol duty and he saw a person coming from the side of Ballia having a plastic bag and on seeing the police party he tried to run away then he was apprehended at about 9.20 P.M. and upon inquiry he told his name as Pradeep Kumar Pathak son of Sitaram Pathak r/o village Nagwa P.S. Dabhar Ballia and he further stated that he kept Ganja in his bag and also one country made pistol of 303 bore with two live cartridges of the same bore and so he tried to run away . He was offered to give search before the Magistrate/ gazetted officer but he stated that he was ready to be searched by the police and upon search about one and half kilogram Ganja was recovered and one country made pistol of 303 bore and two live cartridges were also recovered from his possession . For sample 100 gram Ganja was sealed and he was arrested and the case was registered against him.
(3.) The Present bail application is only under section 8/20 N.D.P.S. Act . The applicant has alleged that he is innocent and he has falsely been implicated in this case and so he should be granted bail . His learned counsel submitted that there is violation of section 50 of N.D.P.S. Act as search was not done before a gazetted officer or Magistrate. The position in regard to applicability section 50 of N.D.P.S. Act has been finally settled by the Hon'ble Supreme Court. Referring to several rulings on this point their Lordships made the following observations on the point in para 6 of its judgment in the case of State of Haryana Vs. Ranbir alias Rana : 2005(2) JIC 20 (SC): "6. The question as regards applicability of Section 50 of the Act need not detain us for long. We may notice that in view of conflict in the opinions of different benches as also differences of opinion between two Judges of this Court in State of Himachal Pradesh Vs. Pawan Kumar JT 2004(8) SC 190; (2004) 7 SCC 735, the question was referred to a larger Bench. A three- Judge Bench of this Court in State of Himachal Pradesh etc. V. Pawan Kumar, 2005(2) JIC 413 (SC): (2005)4 SCC 350, relying on or on the basis of a large number of decisions and in particular the decision of the Constitution Bench of this Court in State of Punjab V. Baldev Singh, 1999 (2) JIC 421 (SC): (1999) 6 SCC 172, clearly held that Section 50 of the Act would be applicable only in a case of personal search of the accused and not when it is made in respect of some baggage like a bag, article or container etc. which the accused at the relevant time was carrying.";