ZAKIR HUSAIN Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This application for bail under Section 439, Cr. P.C.arises out of case Crime No. 107 of 1996 under Section 8/18/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'the Act') registered at police station Dildarnagar, district Ghazipur.

(2.) According to the prosecution story as set out in the First Information Report, Sub-Inspector Kale Deen Azad along with the two constables was present at Bahawra Crossing on 28-7-1996 for checking of the vehicles and fire arms and surveillance over anti-social elements. There he received an information from the Mukhbir Khas that a person in possession of narcotics was about to go from Dildar Nagar to Village Pachokhar and he could be arrested along with contraband article if steps were taken quickly. On the basis of the said information the police party led by Sub-Inspector Kale Deen Azad left for the destination and nabbed the applicant as soon as he reached at Pachokhar Tiraha at about 9-10 hours. On being apprehended the applicant was told that according to the information received by the police he was in possession of narcotics and if he so desires he could be produced before a Magistrate or a Gazetted Officer for search. The applicant, it is stated, apologetically declined the offer to be searched before a magistrate or a gazetted officer whereupon search of his person was conducted by the police party and five gms. of heroin is said to have been recovered from him. The applicant, according to the F.I.R.admitted the article so recovered to be heroin. It is stated that certain members of public has, in the meantime, reached the spot but they refused to be the witnesses of the search and recovery, whereupon search memo was prepared by the Sub-Inspector Kale Deen Azad. The defence is that the applicant has been falsely implicated in the case due to enmity with the police.

(3.) Sri D.K.Singh, learned counsel appearing for the applicant pressed for bail on the ground of violation of Sections 42, 50 and 57 of the Act. The learned counsel urged that the evidence of the alleged recovery of contraband from the applicant collected in breach of the provisions aforestated would invalidate the trial and if such evidence of recovery and seizure is ignored, there would be no reasonable ground for believing that the applicant is guilty of any offence punishable under the Act. Sri Manphool Singh, learned Additional Government Advocate refuted the submissions aforestated and urged that irregularity in search and seizure would not ipso facto invalidate the trial.