Court No. - 84

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 59155

of 2022

Applicant :- Satyendra Kumar Bhokta

Opposite Party :- State of U.P.

Counsel for Applicant :- Virendra Singh

Counsel for Opposite Party :- G.A.

Hon'ble Sameer Jain,J.

Heard Sri Virendra Singh, learned counsel for the applicant and

Sri Suresh Bahadur, learned A.G.A. for the State.

The instant bail application has been filed seeking release of the

applicant on bail in Case Crime No.242 of 2022, under Section

8/18/22/29/60 of N.D.P.S. Act, P.S. Sigra, District Varanasi,

during pendency of the trial.

According to prosecution case, applicant along with two others

was arrested and from the possession of the applicant 1 kg.

Brown Sugar was recovered and from the possession of the rest

of the accused persons also 100 and 150 gram of Brown Sugar

was recovered.

Learned counsel for the applicant submits that applicant is

innocent and he has falsely implicated in the present matter and

in fact nothing incriminating was recovered from his

possession. He further submits that at the time of recovery

mandatory provision of Section 50 have not been complied and

no option was given to the applicant that applicant is having

right to be searched either before a Magistrate or Gazetted

Officer and only option given to him that he may give his

search either before Magistrate or Gazetted Officer without

apprising his right.

He next submits that after recovery mandatory provision of

Section 52-A N.D.P.S. Act with regard to sampling and

instruction of the Central Government have not complied.

Learned counsel further submits that applicant is not having any

criminal history and in the present matter he is in jail since

25.06.2022.

Per contra, learned A.G.A. for the State opposed the prayer for

bail and submits that from the possession of the applicant 1 kg.

Brown Sugar was recovered which is well above the

commercial quantity of 250 gram and at the time of recovery

the mandatory provision of Section 50 have been duly complied

and on the option of the applicant his search was made before a

Gazetted Officer, therefore, considering the provisions of

Section 37 of N.D.P.S. Act, the applicant is not entitled to be

released on bail.

I have heard both the parties and perused the record of the case.

From the perusal of the recovery memo, it appears that

applicant along with two others was arrested and from his

possession 1 kg. Brown Sugar was recovered and from the

possession of other two persons 100 and 150 gram Brown

Sugar was recovered and one co-accused Kanhaiya informed

the police that applicant is the person who provided him Brown

Sugar, therefore, as per allegation, it appears that the applicant

is drug peddler, who involve in illegal trafficking of the drug.

From the perusal of the recovery memo, it further reflects that

at the time of recovery an option was given to the applicant that

if he wants then his search may be taken either before a

Magistrate or Gazetted Officer and when he opted for Gazetted

Officer then his search was taken before Gazetted Officer.

Although, it appears that about the right of the applicant could

not be informed but it is a question of fact which can only be

ascertained by the trial court during the trial and at the stage of

bail, it cannot be said that at the time of search mandatory

provision of Section 50 have not been complied.

The grant of bail involving commercial quantity under the

provisions of N.D.P.S. is regulated by Section 37 N.D.P.S. Act

and according to Section 37 N.D.P.S. Act, bail cannot be given

to an accused involving the commercial quantity unless Court is

having reasonable ground to believe that he is not guilty and

after released on bail, he will not commit any offence. In the

present matter, there is no material before the Court, on the

basis of which it can be reasonably believe that applicant is not

guilty and as from the possession of the applicant