Court No. - 84

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40635 of 2022

Applicant :- Amirullah @ Amir Musalman

Opposite Party :- State of U.P.

Counsel for Applicant :- Surendra Mohan Mishra,Vishveshwar Mani

Tripathi

Counsel for Opposite Party :- G.A.

Hon'ble Sameer Jain,J.

1. Heard Sri Vishveshwar Mani Tripathi, learned counsel for

the applicant and Sri Jhamman Ram, learned AGA, for the

State.

2. The instant bail application has been moved on behalf of the

applicant with the prayer to release him on bail in Case Crime

No.145 of 2022 under Sections 8/22/23 NDPS Act, Police

Station Mohana, District Siddharth Nagar during pendency of

the trial.

3. According to the prosecution case, from the possession of

applicant 410 capsule of windlas winspasma forte about 258.3

gm. was recovered.

4. Learned counsel for the applicant submitted that applicant is

innocent and entire allegation made against him is totally false

and baseless and in fact nothing incriminating has been

recovered from his possession.

5. He next submitted that alleged capsule of windlas

winspasma forte contain three drugs, namely, dicyclomine,

tramadol and paracetamol and out of three drugs only tramadol

is prohibited drug and commercial quantity of tramadol is

250gm. and if entire quantity is accepted then also only 8

gm.more than the commercial quantity was alleged to have

been recovered from the possession of applicant. He further

submits that at the time of alleged recovery mandatory

provisions of Section 50 NDPS Act have not been complied

with and this fact is evident from the recovery memo.

6. He next submits that no option was given to applicant

whether he wants to be searched either before the Gazetted

Officer or before the Magistrate. He further submits that

applicant is not having any criminal history and he is in jail in

the present matter since 7.7.2022.

7. Per contra, learned AGA opposed the prayer for bail and

submits that total 258.3gm. prohibited drug was recovered

from the possession of the applicant but he could not dispute

the fact that the alleged recovered capsule contains three drugs

and out of three drugs only tramadol is narcotic substance and

commercial quantity of tramadol is 250gm. and therefore, only

8 grams more than commercial quantity of tramadol is said to

be recovered from the possession of applicant.

8. Learned AGA also could not dispute the fact that in the

recovery memo it is nowhere stated that option was given to

applicant that he may give his search either before the

Magistrate or before the Gazetted Officer.

9. I have heard learned counsel for the parties and perused the

record of the case.

10. From the recovery memo it appears that no option was

given to applicant with regard to his search either before a

Magistrate or Gazetted Officer. Further, windlas winspasmo

forte, the recovered capsule contains three drugs, namely,

dicyclomine, tramadol and paracetamol and out of three only

tramadol is a narcotics drug which is prohibited under the

NDPS Act and commercial quantity of tramadol is 250gm and,

therefore, only 8gm. more than commercial quantity is said to

have been recovered from the possession of applicant.

11. Applicant is not having any criminal history and he is in

jail in the present matter since 7.7.2022, therefore, considering

the fact that prima facie it appears that there is non compliance

of Section 50 NDPS Act and only 8gm. more than commercial

quantity of tramadol is alleged to have been recovered from the

possession of applicant, in my view, applicant is entitled to be

enlarged on bail.

12. In the light of discussions made above, without expressing

any opinion on the merits of the case, the instant bail

application is allowed.

13. Let the applicant-Amirullah @ Amir Musalman be

released on bail in the aforesaid case on furnishing a personal

bond and two sureties each in the lik