LAWS(ALL)-2011-5-90

SURESH SINGH KUSHWAHA Vs. STATE OF U P

Decided On May 30, 2011
SURESH SINGH KUSHWAHA Appellant
V/S
STATE OF UTTAR PRADESH Respondents

JUDGEMENT

(1.) This is the second bail application moved on behalf of the Appellant Suresh Singh Kushwaha. The first bail application was rejected on 11.10.2007 by another Bench of this Court.

(2.) Heard Mr. D.S. Mishra for the Appellant and Mr. Sanjai Kumar Singh and the learned AGA for the Respondent and perused the record.

(3.) Mr. D.S. Mishra submitted that the court while rejecting the first bail application, had directed for preparation of paper book within six weeks and also for listing the appeal for final hearing but despite that order, the appeal could not be heard on account of heavy dockets, therefore, the Appellant is languishing in jail since last more than four years and has thus served out a substantial portion of the sentence. Mr. Mishra next submitted that in case the Appellant is not released on bail, the appeal in due course of time would become infructuous. Mr. Mishra further submitted that no doubt the recovered quantity of Heroin was 500 grams but the chemical analyst found only 6.5% Heroin in the recovered substance, therefore, the net weight of Heroin was only 30.25 grams, which was less than the commercial quantity, and as such the stringent conditions provided in Section 37(1)(b) of the Narcotic Drugs & Psychotropic Substances Act are not attracted in this case. More so, the Appellant is entitled to the benefit of the judgment rendered by the Apex Court in E. Michael Raj v. Intelligence Officer Narcotic Control Bureau, 2008 4 JT 523. In that case, the Apex Court held that only the actual percentage of the narcotic substance found on analysis is to be taken into account and not the entire mixture recovered from the possession of the accused. According to Mr. Mishra, the extraneous materials, which do not constitute Heroin, ought not to have been taken into account by the learned trial court while deciding the quantity of Heroin.