RAVINDRA SINGH, J. - (1.) HEARD Sri Satyendra Narayan Singh and Sri Anil Kumar Shukla, learned Counsel for the applicants, learned A.G.A. for the State of U.P. and perused the case diary.
(2.) IT is contended by learned Counsel for applicant that according to the prose­cution version the applicant and co-accused Kanhaiya Lal Sharma were appre­hended by the police on the basis of doubt and suspicion, from their possession one bag containing one kg. Heroin has been recovered and on individual search 140 gram charas has been recovered from the possession of the applicant and 100 gram charas has been recovered from the pos­session of the co-accused Kanhaiya Lal Sharma. In the present case compliance of section 50 of N.D.P.S. Act has not been made because the offer placed before the applicant and co-accused for giving the search was only before the gazetted officer. It was not before any Magistrate concerned whereas it was mandatory of apprising the applicant and other co-accused that it was their right to give search before any gazetted officer or Magistrate concerned. It is further contended that there is no inde­pendent witness to support the prosecution story. It is further contended that it has not been specifically alleged that the bag con­taining the Heroin in whose possession. It is contended that during investigation the statements of Rajnesh Kumar Tripathi, In-charge of the S.O.G. who apprehended the applicant and recovered the Heroin and charas from the possession of the applicant and co-accused person was recorded. Ac­cording to his statement it was improved that the offer was placed before the appli­cant and other co-accused person to give the search in the presence of any gazetted officer or Magistrate. It is also surprising that statement of witness constable Pankaj Kumar, tampering has been made with the name of co-accused Kanhaiya Lal was cut by over writing but it was written in his statement that bag containing the Heroin was in the hand of Kanhaiya Lal and applicant Lakhan Singh but the name of Kan­haiya Lal was cut. The tampering was made by the I.O. in the statement of Rakesh Kumar Awasthi, Station Officer, P.S. Highway, Mathura and in the statement of S.I. Sri Netrapal Sharma and I.O. had tried to show that the alleged recovered bag having the heroin was in the hands of the applicant. The Kanhaiya Lal Sharma has been released on bail, therefore, the appli­cant may also be released on bail. In reply of the above contention, it is submitted by learned A.G.A. that in the present case the applicant and co-accused Kanhaiya Lal Sharma were apprehended all of sudden. The arresting officer was not having any prior information, therefore, the provisions of section 50 of N.D.P.S. Act will not apply. The same will not apply because the recovery of the alleged bag which was having any contact with the body of the applicant or co-accused. It is further contended that according to the recovery memo itself it is clear that offer of making search before Investigating Officer or Magistrate has been made. The co-accused Kanhaiya Lal Sharma has been released on bail by the Sessions Court on 15.5.2008 only because during investigation some of the witnesses have stated that recovery was not made from the possession of the co-accused Kanhaiya Lal Sharma, it was made from the possession of the appli­cant. There had been some over writing also in the name of co-accused Kanhaiya Lal Sharma and the same was enquired by the I.O. at the stage of the trial. One kg. Heroin and 140 gram charas have been re­covered from the possession of the appli­cant. According to the Public Analyst re­port also the sample was having heroin, the same may not be controverter. Therefore, the applicant may not be released on bail.
(3.) CONSIDERING the facts, circum­stances of the case submissions made by learned Counsel for the applicant, learned A.G.A., learned Counsel for the complain­ant and considering the fact that one kg. Heroin and 140 gram charas have been re­covered from the possession of the appli­cant, the recovered heroin is above the commercial quantity, applicant is not enti­tled to get the benefit of parity with co-accused Kanhaiya Lal Sharma because during investigation some witnesses stated that recovery was made only from the possession of applicant and without express­ing any opinion on the matter of the case, the applicant is not entitled for bail, the prayer for bail is refused. Accordingly this application is rejected.;