AHMAD @ PIYARE Vs. STATE OF U.P.

JUDGEMENT

(1.) HEARD Sri Indrajeet Shukla, learned counsel for the applicant-accused, learned A.G.A. and perused the record.

(2.) THE prosecution case as disclosed in the first information report is briefly stated as under:

(3.) THE learned counsel for the applicant-accused argued that from a perusal of the recovery memo it appears that the seizing officer without weighing the so called recovered charas has mentioned its quantity about 2 kg, which is based on his personal guess. Learned counsel argued that where a contraband substance is recovered from the possession of an accused the seizing officer is under obligation to measure weight of the recovered substance to ascertain its actual quantity. The Act has prescribed the quantity of Narcotics Substance in three categories: The first category is small quantity. The second category above the small quantity and below commercial quantity and the third category is commercial quantity. If the accused is found in possession of narcotics substance, which is of commercial quantity, his bail application will be considered in the light of Section 437 of the Code of Criminal Procedure, wherein the burden of proof of showing not guilty lies on the accused. If the accused is found in possession of narcotics substance below the commercial quantity and above small quantity, his bail application will be considered keeping in view the provisions for bail provided under section 37 of the Act. If the accused is found in possession of narcotics substance of small quantity, he will have right of bail. In this way the recovered quantity of substance goes to the root of jurisdiction of Court for considering the bail application of the accused. If the seizing officer has not measured the actual quantity of recovered contraband substance, in that event it can not be ascertained under which of three categories provided under the Act, the recovered contraband substance falls. In this case the Investigating Officer/S.I. Sri Sukhdeo Rai, has filed counter affidavit and Sub-Inspector Sri Shiv Pratap Singh has filed supplementary counter affidavit. In both the affidavits, the deponents have not specifically mentioned that the recovered charas was measured by the recovering officer, therefore, it can not be said that the weight of the recovered substance is 2 kg. Its weight may be below the commercial quantity too. The accused is, therefore, entitled to be released on bail on this very ground.