Alok Kumar Verma DECISION
Alok Kumar Verma, J.
1. This bail application has been filed under Section 439 of the Code of Criminal Procedure, 1973 for grant of regular bail in connection with FIR No. 0162 of 2019, registered with Police Station Prem Nagar, District Dehradun, for the offence punishable under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act, 1985').
2. Facts, to the limited extent necessary, are that on 17.08.2019, when the informant Navneet Singh Bhandari, Sub Inspector, along with other police personnel were on routine checking in the area of Police Station Prem Nagar, District Dehradun, received a secret information in respect of a person carrying a bag, who was coming from Selakui. In spite of an endeavour, no independent witness could be secured. The police party went towards Singhniwala. The applicant was apprehended. At that time, a plastic bag was in his hand. On interrogation, he revealed his name and address. He disclosed that he was carrying Smack from Bareilly to sell it. Mr. Shekhar Chandra Suyal, Circle Officer of the Police, was informed by the informant on mobile phone and in the presence of him, search was conducted. During this search, the present applicant was found to be in possession of Smack (Diacetylmorphine), which was put in his hand bag. The electronic weighing machine was brought by Constable Brij Mohan. The recovered contraband Smack was weighed on the spot and same was found 320 Gram. Thereafter, the recovery memo was prepared. The applicant was arrested at 09.50 hrs. The recovered contraband produced before the court concerned and the whole recovered contraband was sent to the Forensic Science Laboratory, Dehradun. According to the report of Forensic Science Laboratory dated 05.10.2019, the tested material was Smack (Diacetylmorphine). The charge sheet was submitted after investigation.
3. Heard Mr. Karan Anand, the learned counsel for the applicant and Mr. S.S. Adhikari, learned A.G.A. assisted by Mr. P.S. Uniyal, the learned Brief Holder for the State through video conferencing.
4. The learned counsel for the applicant submits that the applicant has been falsely implicated; Smack is not a narcotic drug as the same is nowhere described in its Schedule; the reason is that the waste material which is procured under the derivation of Heroin (Diacetylmorphine) from Opium is called 'Smack'; in the said process, the crushed tablets of 'Mendracks and Alprazolam' is used; when the Smack is tested in the lab then, test comes positive with the narcotic name 'Smack-Diacetylmorphine' because the Smack is the waste material produced under the derivation of Heroin from Opium, therefore, the present matter does not fall under Section 2 (xvi) of the Act, 1985; the alleged contraband was not taken before the concerned court; provisions of Section 50 and 57 of the Act, 1985 have not been complied with; no public witness was taken by the police in the alleged recovery proceedings; the alleged recovery was made in the presence of the Circle Officer, who was highly interested person; there is no clinching evidence against the applicant; the applicant is in custody since 17.08.2019.
5. The learned Assistant Government Advocate appearing for the State opposed the bail application and submits that provision of Section 50 of the Act, 1985 is not attracted in this case; after recovery, the applicant al........