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On 19th February 2018 when the inspector of a special task force, M.P Singh along with his personnel were on routine checking in the area of the police station Banbasa, India-Nepal border to prevent trafficking of drugs. They received information that a person is coming from Nepal to sell Charas at the west corner of the bridge of Fagpur. Despite the attempt, no independent witness was secured. The applicant was apprehended with a plastic bag in his hand. On questioning the suspect he revealed his name to be Takendra Parsad Joshi of Nepal. He further told the police that he was trying to sell Charas in the area. He was found in possession of 2.5 kg Charas.
The learned Counsel for the applicant submits that the applicant has been falsely implicated, provisions of Sec 42,50,52 and 57 of the NDPS Act have not been complied with, no public witness was taken despite the alleged arrest being made on the National Highway, the alleged recovery was made in the presence of circle office, who was a highly interested person, the applicant has no criminal antecedents. The case of the prosecution has not been proved with evidence of witnesses and has been in custody since 19th February 2018.
The learned assistant government advocate for the State opposed the bail and submitted that provisions of Sec 42 and 50 of the NDPS Act are not attracted in the case, Charas which was recovered was in commercial quantity looking at the involvement in crime, the chances of misuse of bail are higher as the person is a permanent resident of Nepal.
The preamble of the NDPS Act shows that the object of the Act is to strengthen and amend the law relating to narcotic drugs and to make provisions for the control and regulations of operation relating to narcotic drugs and psychotropic substance.
In the case passed by the Supreme Court in state v. Syed Amir Hasnain (2002) it was held in the view of two judgements of the Court in UOI v. Ram Samujh (1999) and UOI v. Aharwa Deen (2000), even the High Court would be bound by the provisions of the Sec 37 of the NDPS Act and would be entitled to release the accused under the provisions of the Act unless provisions of Sec 37 are satisfied.
In the case passed by the Apex Court in Megh Singh v. the State of Punjab (2004), it was held that a bare reading of Sec 50 of the NDPS Act shows that it applies in the case of personal search of person and not in search of the vehicle, premises or bag.
The Hon'ble Supreme Court has held in case of Makhan Singh v. the State of Haryana (2015) that compliance with Sec 50 of the NDPS Act will come in play only in the case of personal search, not some baggage like a bag, article or container which the accused may be carrying to be searched.
The alleged Charas was recovered from the bag of the applicant and not in his search, it can be said that the compliance of Sec 50 of the NDPS Act was not applicable in the case.
The learned Counsel for the State submitted that the provisions of Sec 42 of the NDPS Act are not applicable in the case. The information was received when the informant was busy in the routine checking and because of lack of time, the information was not given in writing to the superior officer for obtaining his permission.
The recovery was made at night and due to which no public witness was secured. The law is well settled that the evidence of a public officer cannot be thrown only on the ground that he is a police officer.
The accusation in the case is regarding commercial quality. Once, the public prosecutor opposes the bail application in a case, the Court proposes to grant bail, two conditions need to be satisfied (1) There must be reasonable grounds for believing that the person is not guilty of the offence committed. (2) That person is not likely to commit such an offence once he gets out on bail.
As per the facts and circumstances of the case, a mandatory condition for granting bail has not been satisfied. It would be inappropriate to discuss the evidence of the trial Court in depth. No reason is found to falsely accuse the accused person. Since there is no good ground for the release of the applicant on bail, hence, the bail has been rejected. Since the applicant is in custody since 19th February 2018 the Trial Court has hereby directed to expedite the trial and dispose of the case.
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