Point of Law: larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits

JUDGMENT :

GAUTAM CHOWDHARY, J.

1. Heard learned counsel for the applicant and learned A.G.A. for the State and perused the material brought on record.

2. The present bail application has been filed on behalf of the applicant, Mahesh Singh, with a prayer to release him on bail in Case Crime No. 343 of 2020, under Sections 8/20/22/23/25/60 N.D.P.S. Act, Police Station-Bithoor, District-Kanpur Nagar, during pendency of trial.

3. Submission of counsel for the applicant is that the amount of the contraband (10 Kg. 27 gms. of Charas) which has been allegedly recovered from the possession of the accused is not supported by any independent witness. Other submissions showing the falsity of the prosecution story with regard to the recovery have also been made. Further contention is that the statutory provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 have not been complied with in the right manner. The counsel has also tried to demonstrate the circumstances indicating the false implication of the applicant. It is further submitted that in this case sampling was done on 6.6.2020 at the place of occurrence, which fact is evident from the Case Diary, but the sample was received by Laboratory on 17.7.2020 i.e. by delay of one month and 10 days (copy of the laboratory report dated 24.8.2020 is annexed as Annexure No. 6 to the affidavit), which shows that the sample remained in the custody of the police for more than one month as such there is every possibility of adulteration. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been submitted that the applicant is in jail since 7.6.2020 having no criminal history.

4. In support of his contention learned counsel for the applicant has relied upon the judgment of the Hon'ble Supreme Court in State of Rajasthan vs. Tara Singh, (2011) 11 SCC 559, in which it has been held as under:-

“(1).........

(2) At the very outset, it must be understood that the provisions of Section 50 would no longer be applicable to a search such as the one made in the present case as the opium had been carried on the head in a gunny bag. A Bench of this Court in State of Himachal Pradesh vs. Pawan Kumar, (2005) 4 SCC 350 after examining the discrepant views rendered in various judgments of this Court has found that Section 50 of the Act would not apply to any search or seizure where the article was not being carried on the person of the accused. Admittedly, in the present case, the opium was being carried on the head in a bag. Mr. Abhishek Gupta, the learned counsel for the appellant-State, therefore, appears to be right when he contends that the observations of the High Court that the provisions of Section 50 of the Act would not be applicable was no longer correct in view of the judgment in Pawan Kumar's case. We find, however, that the second aspect on which the High Court has opined calls for no interference. As per the prosecution story the samples had been removed from the Malkhana on the 26th of February, 1998, and should have been received in the laboratory the very next day. The High Court has, accordingly observed that the prosecution had not been able to show as to in whose possession the samples had remained from 26th February, 1998 to 9th March, 1998. The High Court has also disbelieved the evidence of PW-6 and PW-9, the former being the Malkhana in-charge and the latter being the Constable, who had taken the samples to the Laboratory to the effect that the samples had been taken out on the 9th of March, 1998 and not on the 26th February, 1998. The Court has also found that in the absence of any reliable evidence with regard to the authenticity of the letter dated 26th February, 1998 it had to be found that the samples had remained in some unknown c