Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45249 of 2021 Applicant :- Insar @ Neta Opposite Party :- State Of U.P Thru Secretary Home Lknw.
Counsel for Applicant :- A.Z.Khan Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Sri A.Z. Khan, learned counsel for the applicant, Sri Ankit Srivastava learned Brief Holder for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Insar@Neta, seeking enlargement on bail during trial in connection with Case Crime No. 376 of 2021, under Sections 8/21 N.D.P.S. Act, registered at P.S. Nakur, District Saharanpur.
The prosecution case as per the F.I.R. lodged on 11.9.2021 at about 10:40 hours under Sections 8/21 N.D.P.S. Act by Sub Inspector Devendra Singh, is that the first informant and other police personnels were busy in routine law and order maintenance and were checking suspected persons on which they saw that one person coming who after seeing police party became uncomfortable and turned around and moved fast, after which he was apprehended who disclosed his name as Insar@Neta who is the present applicant. He stated that he has smack with him. He was given an option of being searched before a Magistrate or a Gazetted Officer to which he refused. After which he was searched and from right pocket of pant, brown coloured powder(smack) wrapped in a polythene was recovered and after weighing on electronic machine it was found to be about 14gms, out of which 02gms smack was taken out separately and sealed as a sample. The remaining amount of smack being 12gms was sealed in a different bag.
Learned counsel for the applicant argued that there is no compliance of Sections 50, 52, 55 of N.D.P.S. Act. The applicant as a matter of fact was not given an option of being searched before a Gazetted Officer. It is further argued that there is no independent witness to support the said recovery.
It is argued that the commercial quantity of smack is 250 gms and the small quantity is 5 gm as per the schedule of N.D.P.S. Act. It is argued that the recovered article is thus less than the commercial quantity. It is further argued that there is no recovery as a matter of fact, from the possession of the applicant but the said recovery is a planted recovery. Para-9 of the affidavit in support of bail application has been placed before the Court to buttress the said argument. It is further argued that there is no report of chemical examiner available on record which may establish that the recovered article is smack so as to implicate the applicant in the present case.
Learned counsel has placed para-14 of the affidavit which is the criminal history of the applicant and has argued that previously the applicant was involved in one case being Case Crime No. 510 of 2019, under Sections 8/22 N.D.P.S. Act, P.S. Nakur, District Saharanpur, in which he has been granted bail by this Court vide order dated 07.01.2020. It is argued that the applicant has been falsely implicated in the present case.
Per contra, learned State counsel opposed the prayer for bail and argued that the applicant has been arrested while the police was on its routine duty of maintaining law and order. There is a recovery of 14gms of smack from his possession. There has been compliance of mandatory provisions of N.D.P.S. Act.
Looking to the facts and circumstances of the case, recovery as effected from the possession of the applicant and the material on record, it cannot be said that there is no compliance of any mandatory provisions of the Act.
After having heard learned counsels for the parties and perusing the record, it is evident that the applicant was arrested by the police while they were on routine patrolling to maintain law and order and from the possession of the applicant 14gms of smack has been recovered, which is more than small quantity and this is a repeated offence of the applicant in the same nature.
Looking to fact and circumstances of the case, nature of evidence and gravity of offence, I do not find it a fit case to release the applicant on bail.
Accordingly, the bail application is rejected.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 29.10.2021 Naresh Digitally signed by Justice Samit Gopal Date: 2021.10.29 18:14:15 IST Reason: Document Owner Location: High Court of Judicature at Allahabad