Javed v. State of U.P.

Court No. - 58

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49267 of 2022

Applicant :- Javed Opposite Party :- State of U.P. Counsel for Applicant :- Irfan Chaudhary,Yash Raj Verma Counsel for Opposite Party :- G.A.

Hon'ble Shiv Shanker Prasad,J.

Heard Mr. Irfan Chaudhary and Yash Raj Verma, learned counsel for the applicant and Mr. Vinod Kumar Singh Parmar, learned A.G.A. for the State as well as perused the entire material available on record.

The present bail application has been filed by the applicant-Javed with a prayer to enlarge him on bail in Crime No. 224 of 2022, under Sections 8, 21 and 29 Narcotic Drugs and Psychotropic Substance Act, 1985, Police Station-Nanauta, District-Saharanpur, during the pendency of trial.

The present first information report has been lodged with regard to the alleged arrest of two co-accused persons, namely, Rahman and Survej, who were intercepted by the informant on an information received from a Police informer, whereupon some brown (narcotic) substance "smack" weighing around 30 grams were allegedly recovered from a black poly bag, which was hanging on their motorcycle.

Learned counsel for the applicant has argued that the applicant is absolutely innocent and has been falsely implicated in the present case with a view to cause unnecessary harassment and to victimize him. Learned counsel submits that the applicant is not named in the first information report. Neither the applicant has been arrested from the spot nor anything incriminating material has been recovered from the possession of the applicant or his pointing out. It is only on the basis of confessional statement of the aforesaid two co-accused that the present applicant has been falsely implicated in the present case. The confessional statement given by the coaccused before the Police has no evidentiary value in view of Sections 25 and 26 of the Indian Evidence Act. It is further submitted that there is no public witness of the alleged recovery from the co-accused. It is further contended that mandatory provision of Section 50 of N.D.P.S Act has not been complied with. These are the questions of fact which can be determined only during trial and not at the present stage. In case of prima facie noncompliance of mandatory provision of Section 50 the accused is entitled to be released on bail within the meaning of Section 37 of N.D.P.S. Act. The procedure of sampling adopted is in violation of Standing Order / Instruction No.1 of 1989 dated 13.6.1989 issued