STATE OF U P Vs. BHOLEY @ NADIR

JUDGEMENT

(1.) By the impugned judgment passed in Special Sessions Trial No.269 of 2010, the accused Bholey @ Nadir was acquitted of the charge of Section 8/21 of NDPS Act, 1985. Aggrieved thereby the State has filed an application under Section 378(3) of Cr.P.C. for grant of leave to appeal against the said judgment.

(2.) Brief facts are to the effect that a police party consisting of one Sub-Inspector and three Constables were involved in vehicle checking and was proceeding towards Nai Sarak. They spotted two persons coming from Asandra. Seeing the police personnel, they turned around and started walking with fast steps. The police party became suspicious and asked them to stop upon which they started running. The police personnel chased them and by use of required force apprehended them at 4:00 pm. Upon being asked one of them told his name as Sarvar Hussain and the other revealed his name as Bholey @ Nadir. When asked whey they were trying to flee away, both of them admitted that they were carrying Morphine which they had purchased from one Mushir. Both of them were told that they have a right of personal search by a Magistrate or Gazetted Officer. Upon this, they both said that since the police party has apprehended them, they were satisfied if their search was conducted by the police personnel. They also gave their consent in writing regarding the search by police party. Thereafter, the police personnel searched each other to satisfy themselves that none of them were carrying anything objectionable. The police party asks certain public persons/passers by to become public witness but none of them consented to this and went away without even telling their names. Thereafter, Sarvar Hussain was searched and from the right pocket of his pant, a polythene containing brown substance was recovered. Similarly, from the search of Bholey @ Nadir, a polythene containing brown substance was recovered. The polythenes were opened and the police personnel upon smelling them were apparently satisfied that these articles were Morphine. A scale was taken out and upon weighing them, each of the polythene weighed 50 Gms.

(3.) Sarvar Hussain & Bholey @ Nadir were asked to show authority to carry Morphine but failed to do so. They were formally arrested after informing them of the reason for the arrest and recovered articles were sealed in the polythene alongwith cloths tied over them. Sample seal was prepared and recovery memo was written at the spot in front of the accused persons and police personnel. Therein it was also written that upon reaching the police station, information regarding the arrest shall be given to the relatives of the accused as well as senior police officers. The contents of the recovery memo were read over and explained to the accused as also the police personnel who signed the same and copy of the recovery memo was handed over to both the accused.