Heard learned counsel for the applicant, learned counsel for Union of India,Sri I.B.Singh and perused the complaint and other relevant papers on record.
Submission of the learned counsel for the applicant is that the applicant is a poppy grower and has obtained licence for the same from NARCOTICS Department. The allegations against the accused- applicant relate to the year as long back as 2004-05. It is further submitted that, as alleged,the weight of opium which was submitted was more than that was cultivated. The opium, after its examination, was found to be adulterated and, as such, was confiscated. A notice was sent to the accused-applicant to be present at the time of examination but the accused-applicant did not turn up with the result that, after examination, the opium was confiscated. It is further submitted that copy of the test report as well as confiscation order, as contemplated under rules 21 and 29 of the Narcotic Drugs & Psychotropic Substances Rules, 1985(hereinafter referred to as the Rules) were not served upon the applicant, as such, he could not prefer an appeal.
Counter affidavit filed on behalf of Union of India does not clearly indicate that proper opportunity was given to the applicant as contemplated under rule 29 of the rules. It is also vehemently argued that no offence under sections 8/19 and 8/26 of The Narcotic Drugs & Psychotropic Substances Act, 1985 is made out against the accused- applicant and the procedure followed is not in accordance with law. The applicant is a cultivator and had valid licence issued by the department of NARCOTICS, after the accused-applicant had satisfied the department with all the requirements needed for obtaining licence. The applicant is an old person. He is in jail since 1.10.2009 and has no previous criminal history, as averred in para 24 of the application. From the averments made in the counter affidavit filed by Union of India, it does not come out that the applicant would repeat the offence. Considering the facts and circumstance of the case, let the applicant be released on bail in S.T.No.833/2009 under sections 8/19 and 8/26,N.D.P.S.Act, P.S.Safdarganj, District Barabanki on his filing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned/remand Magistrate.
Order Date :- 10.5.2010 kvg/-