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Allahabad High Court · body

2009 DIGILAW 3206 (ALL)

Ahmad alias Piyare v. State of U. P.

2009-10-06

RAJ MANI CHAUHAN

body2009
Hon'ble Raj Mani Chauhan, J. Heard Sri Indrajeet Shukla, learned counsel for the applicant-accused, learned A.G.A. and perused the record. 1. 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: 3. 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. 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. 4. 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. 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. 5. The learned counsel for the applicant in support of his submissions placed reliance on the case of Jagdish Versus State of U.P. reported in J.I.C. 2006(2) page 192, decided by this Court. The learned counsel further argued that the recovery memo is silent on the point that the sample of recovered charas was taken on the spot by the seizing officer from each of the pieces, from the possession of the accused and those samples were sealed separately by him. In the counter affidavit, the Investigating Officer has stated that 100 grams of sample was sent to the Forensic Science Laboratory for chemical analysis but in rejoinder affidavit it has been stated that the sample sent to the Forensic Science Laboratory was returned back without examination as it did not bear the seal of Magistrate, therefore, the sample could not be chemically examined. The learned counsel for the applicant contends that no chemical analysis report from Forensic Science Laboratory regarding the recovered contraband charas has been received so far. It is, therefore, not clear as to whether the recovered substance was actually charas. 6. The learned counsel argued that the accused is in jail since 8.7.2008 and there is no chemical analysis report of Forensic Science Laboratory on record to show that the recovered substance was charas. In this way there is no evidence against the accused in support of offence under section 8/20 of the Act. Therefore, he deserves to be released on bail. 7. In this way there is no evidence against the accused in support of offence under section 8/20 of the Act. Therefore, he deserves to be released on bail. 7. Learned A.G.A. opposed the bail application and argued that although the recovery memo is silent on the point that the charas recovered from the possession of the accused had been measured and the sample from each of the pieces recovered from the possession of the accused had been taken by the seizing officer but the Investigating officer in his supplementary counter affidavit has stated that the weight of the recovered charas was two kilogram. 100 gram sample was taken from the recovered charas, which was sent to the Forensic Science Laboratory for chemical analysis but no report of Forensic Science Laboratory has been received so far. The accused had been found in possession of two kg. charas, which was just double of the minimum commercial quantity as prescribed under the Act. The accused has been found in possession of 2 kg charas. This could not be a case of plantation. Keeping in view the nature of the offence and recovered quantity of charas, accused does not deserve to be released on bail. 8. I have given thoroughful considerations to the submissions made by the learned counsel for both the sides. 9. From a perusal of recovery memo it is clear that the recovery memo is silent on the point that the recovered charas was weighed by the seizing officer and sample from each of the pieces of recovered charas from the possession of the accused was taken by him. Since the actual weight of the recovered charas was not ascertained by the seizing officer by weighing the same, therefore, it can hardly be said that the recovered charas from the possession of the accused was 2 kg, it could be below 2 kg or it could be below 1 kg too. In the case of Jagdish Vs. State of U.P. (Supra) this Court has clearly laid down that the weight of the recovered article goes to the root of jurisdiction of court to consider his bail application because only the weight of recovered article determines the jurisdiction. It means unless the recovered substance is weighed its actual quantity, can not be ascertained under which of three categories as mentioned above, it falls. 10. It means unless the recovered substance is weighed its actual quantity, can not be ascertained under which of three categories as mentioned above, it falls. 10. It has been stated in the counter affidavit and supplementary counter affidavit that 100 gram of sample was collected by the seizing officer from recovered charas from the possession of the accused and was sent to the Forensic Science Laboratory for chemical analysis but the report of chemical analysis has not been received so far. It has not been stated in the affidavits that as to how the sample was taken either by the seizing officer or by the investigating officer after the recovered charas has been sealed on the spot. It has also not been stated as to whether the sample was taken from each pieces of the recovered charas from the possession of accused. The chemical analysis report of the sample has not been received so far, therefore, it can not be said that the substance recovered from the possession of the accused was charas. Accused is languishing in jail since 8.7.2008 and his liberty can not be curtailed for indefinite period on account of omission/latches of the prosecution. 11. Keeping in view the entire facts and circumstances of the case without expressing any opinion on the merits of the case, accused-applicant may be released on bail. 12. Let applicant Ahmad alias Piyare be released on bail in aforesaid case crime number on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned.