YOGENDRA KUMAR Vs. STATE OF U. P.

JUDGEMENT

(1.) Heard learned counsel for the applicant, learned AGA for the State and perused the record.

(2.) It is alleged in the prosecution case that on 21/11/2022 at 5:20 hours, while the police party was patrolling and reached near Janjadwapur crossing, one person was coming from Debiyapur on foot. On seeing the police personnel, he turned towards Jadwapur road and when the police tried to speak him, he started running, thereafter, he was followed and caught after 30 paces away. After being asked the reason for running, he confessed his guilt. Upon being apprised that under NDPS Act he has option to be searched by some gazetted officer or the magistrate, he gave his consent to be searched by the police officials who caught him. Written consent was taken from him and after that he was personally searched and bag held in his hand was also searched. From the bag, 11 wrappers were found, total weight of which was found to be 554 grams, out of which 40 gram was taken as a sample and remaining contraband was sealed.

(3.) Learned counsel for the applicant submits that there is total non-compliance of Sec. 50 NDPS Act. The applicant has not been searched by the gazetted officer or by the magistrate. There is no independent witness to the recovery. The applicant is languishing in jail since 21/11/2022. The applicant has explained his criminal history in para 13 of the bail application. There is no other case under NDPS Act against the applicant. Learned counsel for the applicant further submits that there is total non-compliance of Sec. 52A of NDPS Act. The samples have been drawn on the spot and not in front of the magistrate. Prosecution has not obtained any certificate from the magistrate as required under Sec. 52A of NDPS Act. No photographs of the substance have been taken. Even no application has been filed before the magistrate under sub Sec. 2 of Sec. 52A of NDPS Act. The alleged contraband has been seized and representative samples have been drawn without the permission of the concerned magistrate. List of samples so drawn have not been certified by the magistrate. The process of drawing the samples is not under supervision of the magistrate and the entire exercise has not been certified by the magistrate.