BA3/917/2008 of ACCHAN Vs STATE on 26 December 2008

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

ORIGINAL JURISDICTION Dated: Nainital: the 26[th] day of December, 2008 Criminal IIIrd Bail Application No. 917/2008 Order on the Bail Application of accused CRIMINAL SIDE

Acchan S/o Nawab, R/o Mahmoodpur Kaliar, Thana Kotwali Roorkee, District Haridwar

….Applicant (in Jail)

Versus

State of Uttarakhand

….Opposite Party

________________________________________________

Arising out of Case Crime No.239 of 2007

U/Ss 18/20 NDPS Act, P.S. Kotwali Roorkee, Distt. Hardwar Hon’ble Dharam Veer, J.

This is the 3[rd] bail application. The first bail application was dismissed as not pressed. The second bail application was dismissed on merit on 28-4-2008.

Heard Mrs Pushpa Josh, learned counsel for the applicant and Sri Prabhakar Joshi, learned Brief Holder for the respondent no. 1/State.

In brief the prosecution case is that on 24-7-2007 at 8.30 P.M. on the way going from Smriti Dwar to Sonali Park within Kotwali Roorkee, Distt. Hardwar, about 2 kilogram of Charas was said to be recovered from the possession of the present applicant and with the same averments the F.I.R. was lodged by S.I. Sri Mani Bhushan Srivastava at P.S. Kotwali Roorkee on 24-7-2007 at 9.35 P.M.

Only one point was argued by the learned counsel for the applicant that the police party who was accompanying S.I. Sri Bhushan Srivastava, the Arresting Officer no person was accompanying in the name of ‘P. Giri’ whose monogram is affixed in the sealed packed which was sent for chemical examination report. This fact was stated in para 5 of the affidavit of Reshma filed along with the bail application.

In reply to the para 5, the counter affidavit filed by the State of Satya Pal Singh Rana, Sub-Inspector P.S. Kotwali, Roorkee, Hardwar, who has stated in para 3 of the counter affidavit that the time of recovery no police personal in the name of P. Giri was present, but at the time of incident one Head Constable S.P. Giri was present at police station Kotwali Roorkee, and his seal was being used in the case at hand because at the time of preparation of recovery memo the police personnel’s do not have their own seals. It is also submitted that at the time of stamping the same could not be put on the paper properly due to which the word ‘S’ could be illegible is the sole reason the name of S.P. Giri appeared as P. Giri, which is neither intentional nor deliberate.

From the para 3 of the counter affidavit filed by Sri Satya Pal Singh Rana Sub-Inspector it is clear that it does not intentional nor deliberate mistake but as the stamp could not be affixed properly hence the ‘S’ word is illegal and due to this reason the rights of applicant/accused will not affect adversely.

Learned Brief Holder Sri Prabhakar Joshi, counsel for the State has argued that about 2 kilogram of Charas was recovered from the possession of the applicant/accused and the commercial quantity of Charas is one kilogram and he has submitted that as per Section 37(1)(b)(ii) of the Narcotics Drugs & Psychotropic Substances Act, 1985, the applicant is not entitled for bail. He has further submitted that the evidence has been recorded in the trial court to prove the guilty of the applicant/accused and he has further argued that there is a sufficient evidence recorded in the trial court that the applicant/accused is the guilty of the above said offence and if the applicant/accused would be released on bail then he is likely to commit such offence.

After considering all the facts and circumstances and the provision of law as discussed above U/s Section 37 (1)(b)(ii) of the aforesaid Act and particularly considering the fact that about 2 kilograms of Charas was said to be recovered from the possession of the applicant which is a commercial quantity, the Court is of the view that the applicant does not deserve bail at this stage.

Hence the present third bail application of the applicant is hereby rejected accordingly.

26-12-2008 Bhaskar

(Dharam Veer, J.)