RAM DAYAL CHAURASIA Vs. STATE OF U P

JUDGEMENT

(1.) N. L. Ganguly, J. These two bail applications under Section 439 of Cr. P. C. are by Bechan Misra s/o Sri Kare Deen Misra r/o village Mau Mukhtaman P. S. Khajni, district Gorakhpur and Ram Dayal Chaurasia s/o Sri Ram Sewak r/o village Palhaipur P. S. Khajni, district Gorakhpur, who are involved in Crime Nos, 16 and 17 of 1993, respectively under Section 20-B of N. D. P. S. Act.

(2.) ACCORDING to the prosecution case, at about 11. 45 a. m. on 29-1-1993 the Station Officer P. S. Gohana along with staff was checking vehicles. In the course of checking of Vehicle No. URG 1066, 2 kgs. of illegal charas was re covered from the accused Bechan Misra and 2 kgs. of the same article was reco vered from accused Ram Dayal Chaurasia. The applicants are detained in cus tody in connection with the above criminal cases. In the leading case of Bechan Misra, counter affidavit has been filed and the learned counsel for the applicant and the State stated that the counter affidavit filed in the leading case, may be considered in the connected bail application of Ram Dayal Chaurasia. The learned counsel Sri Daya Shanker Misra submitted firstly that the seizure Of the alleged Charas from the applicant was made illegally and there was no compliance of Sections 50 (1), 52 (1) (3) and 52a- (2) of N. D. P. S. Act, hereafter stated as 'the Act' Secondly it was urged that no charas was recovered from the possession of the accused-applicant neither it was seat for chemical examination by the prosecution, hence the accused are entitled for bail and lastly the learned counsel for the applicants strenuously placed submissions that the detentions of the applicants are without proper and legal remand order, hence the detention of the applicants are wholly illegal and unwarranted. They are entitled to be set at liberty forthwith. In the alternative, it was submitted that since it is a bail application and not a writ petition for issuing a writ of habeas corpus, the lesser remedy of grant of bail would serve the ends of justice,

(3.) IN para 22 of the affidavit, it has been stated that joint charge-sheet in Case Crime Nos. 16 and 17 of 1993 was filed on 12-4-1993. The Sessions Judge after receipt of the charge-sheet fixed 14-4-1993 as the date. It has been stated in the affidavit that between 12-4-1993 there is no order on record for remand of the accused in custody. Similarly, in para 23 of the affidavit, it has been stated that on 14-4-1993 the Sessions Judge fixed 27-4-1993 without passing any order of remand for Keeping the accused person in custody. Similarly on 20-5-1993 and 26-6-1993 also, the Sessions Judge has not passed any order of remand for custody of the accused. The averments of the affidavit from paras 22 to 27 of the affidavit have been con troverted and denied in the counter affidavit filed by the State. It was submitted that the charge-sheet submitted by the State was received in the Court of Sessions on 12-4-1993 and in the order-sheet dated 14-4-1993, it is clear that an order of remand under Section 309, Cr. P. C: was passed. The earlier order of remand warranted under Section 167, was rejected, since the submission of the charge-sheet in the Court. The learned Sessions Judge is said to have actually passed orders of remand on 14-4-1993 to 27--1993 and there are initials on the relevant records. The perusal of the order-sheet shows that the next date fixed in the case was on 20-5-1993 framing of the charge and on that date it was said that the accused-applicant shall engage counsel of their choice. They were admitted to jail till then. The record clearly shows that accused was remanded from 27-4-1993 to 28-5-1993 and there are initials of the Sessions Judge, After that, the accused were remanded on 20-5-1993 to 26-6-1993, again from 26-6-1993 to 29-7-1993 and from 29-7-1993 to 8-9-1993. A photostat copy of the order sheet has been annex ed with the counter affidavit as Annexure CA 1.