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Allahabad High Court · body

2005 DIGILAW 1973 (ALL)

NIYAZ AHMAD v. STATE OF U P

2005-10-04

RAVINDRA SINGH

body2005
RAVINDRA SINGH, J. Heard Sri D. R. Kushwaha and Sri Vivek Prakash Mishra learned Counsel for the applicant and learned AGA. 2. This application is filed by the applicant Niyaz Ahmad with a prayer that he may be released on bail in case crime No. 377 of 2004, under Sections 8 (c), 18/20/23 N. D. P. S. Act, P. S. Shahjad Nagar District Rampur. 3. From the perusal of the record it reveals that in the present case F. I. R. was lodged by Sri Manoj Kumar Kaushik, SO of P. S. Shahjad Nagar on 29-7-2004 at about 0. 30 a. m. in respect of the incident, which had occurred on 28-7-2004 at about 10. 30 p. m. The distance of the Police Station was about 2 kms. from the alleged place of occurrence. 4. According to the prosecution version the first informant and other police personnel got information through a Mukhbir Khas that two personnel were sitting near a hotel at a tea stall having a huge quantity of smack and they are trying to sale the same. Thereafter, the higher officers were apprised by the first informant by giving a message through mobile phone and some persons were sent for purchasing the smack from the applicant and other co-accused. The first informant got information given on mobile phone by SI Vikash Saxena that the applicant and another co-accused person are having one Kg smack and they have settled to sell the same for Rs. 3 lac. One Jay Prakash, Dy. Superintendent of Police was also informed about the same and he was requested to come at the place of occurrence. The first informant tried to collect some public witness, but nobody was ready to become then witness. Then they took the search of each other and reached at the place of the occurrence. At that time SI Vikash Saxena was having the conversation with the applicant and other co-accused in respect of the purchase of smack. Thereafter, the applicant and other co-accused were arrested at 10. 30 p. m. by the first informant and others from the tea stall. In the mean time Sri Jai Prakash, Dy. Superintendent of Police came at the place of the occurrence, who took search of the applicant and other co-accused person and from a polythene bag of co-accused Amir Ahmad 1/2 kg. 30 p. m. by the first informant and others from the tea stall. In the mean time Sri Jai Prakash, Dy. Superintendent of Police came at the place of the occurrence, who took search of the applicant and other co-accused person and from a polythene bag of co-accused Amir Ahmad 1/2 kg. smack was recovered and from a bag of the applicant also 1/2 kg. smack as recovered. The applicant and other co-accused stated that they had bought the smack for the purpose of sale. 5. It is contended by the learned Counsel for the applicant that in the present case there is no public witness to support the prosecution story and there is no compliance of Section 50 of the N. D. P. S. Act and without weighing the alleged recovered contraband article, its weight was mentioned in the F. I. R. The weight has been mentioned only on the basis of the self- assessment or presumption. 6. It is opposed by the learned AGA by submitting that the arresting officer has made efforts to collect the public witness, but no-body came forward to become public witness. There is full compliance of the provision of Section 50 of the NDPS Act, because in this case the search of the applicant was taken by a Gagetted Officer and it has come in the evidence that 50 grams smack was taken from the recovered smack for the purpose of sample. It is not necessary to explain minutely each fact of the case in the F. I. R. , because the F. I. R. is not an encyclopaedia of the prosecution case and the recovered smack was above the commercial quantity and there is no possibility of planting such a huge quantity of the smack. 7. After considering the facts and circumstances of the case, the recovery of huge quantity of the smack, submissions made by the learned Counsel for the applicant, learned AGA, it will not be proper to express any opinion on the merits of the case, the pleas taken by the learned Counsel for the applicant shall be considered by the trial Court when the evidence will be adduced. Therefore, the applicant is not entitled for bail at this stage. 8. Accordingly, the bail application is rejected. Application rejected. .