RAJ MANI CHAUHAN,J. - (1.) HEARD Sri Indrajeet Shukla, learned counsel for the applicant-accused, learned A.G.A. and perused the record. Accused Ahmad alias Piyare son of Abid Ali, resident of Pure Nawal Baurahi Pahadwa, Police Station Dhanepur, District Gonda is involved and detained in Case Crime No.152 of 2008, under Section 8/20 of the Narcotics Drugs and Psychotropic Substance Act (hereinafter referred to as the Act), from P.S. Dhanepur, District Gonda and he has applied for bail.
(2.) THE prosecution case as disclosed in the first information report is briefly stated as under: Sri Sanjay Kumar Pandey, the then Station Officer, Police Station Dhanepur on 07.07.2008 left the police station along with Sub-Inspector Ram Sumer Tripathi and constable Kunwar Jagdish and constable Rajman Singh in Government Jeep in search of wanted criminals. When he was returning back to police station from Babaganj market, a person was seen coming after crossing Bagulahi river, who was having bag in his hand. He after seeing the police personnel returned back and started to run away. Sri Pandey suspecting him, chased along with police force and over powered him at 21.45 hours at 25.30 steps away before the river bridge. On interrogation he disclosed that he was having 2 kg. Charas in his bag, therefore, he was trying to escape away. Sri Pandey informed him that he was to be searched. He gave an option to him that in case he wanted to be searched in presence of some gazetted officer or Magistrate, he could be searched so but he expressed his faith in the search to be conducted by the police party. Sri Pandey after observing the requisite formalities provided under the Act searched him and opened his bag. He found four pieces of rectangular brick coffee coloured substance. The length and width of the each brick was 15x10 cm. The pieces appeared to be of charas, which were weighing about 2 kg. The accused on demand failed to produce any authority for keeping charas. Sri Pandey thereafter informing him the accusation, took him in custody and sealed the recovered charas in the same bag, wherein it was found. He prepared sample seal and the recovery memo on the spot. On the basis of recovery memo, the police of police station Dhanepur prepared a chick FIR and registered a case under section 8/20 of the Act at crime no.152 of 2008 against the accused for investigation.
(3.) THE learned counsel for the applicant-accused argued that from a perusal of the recovery memo it appears that the seizing officer without weighing the so called recovered charas has mentioned its quantity about 2 kg, which is based on his personal guess. Learned counsel argued that where a contraband substance is recovered from the possession of an accused the seizing officer is under obligation to measure weight of the recovered substance to ascertain its actual quantity. The Act has prescribed the quantity of Narcotics Substance in three categories: The first category is small quantity. The second category above the small quantity and below commercial quantity and the third category is commercial quantity. If the accused is found in possession of narcotics substance, which is of commercial quantity, his bail application will be considered in the light of Section 437 of the Code of Criminal Procedure, wherein the burden of proof of showing not guilty lies on the accused. If the accused is found in possession of narcotics substance below the commercial quantity and above small quantity, his bail application will be considered keeping in view the provisions for bail provided under section 37 of the Act. If the accused is found in possession of narcotics substance of small quantity, he will have right of bail. In this way the recovered quantity of substance goes to the root of jurisdiction of Court for considering the bail application of the accused. If the seizing officer has not measured the actual quantity of recovered contraband substance, in that event it can not be ascertained under which of three categories provided under the Act, the recovered contraband substance falls. In this case the Investigating Officer/S.I. Sri Sukhdeo Rai, has filed counter affidavit and Sub-Inspector Sri Shiv Pratap Singh has filed supplementary counter affidavit. In both the affidavits, the deponents have not specifically mentioned that the recovered charas was measured by the recovering officer, therefore, it can not be said that the weight of the recovered substance is 2 kg. Its weight may be below the commercial quantity too. The accused is, therefore, entitled to be released on bail on this very ground.;