Jagdish vs State of U.P.

G.P. Srivastava, J.—Heard learned Counsel for the applicant and learned A.G.A.

It is argued by learned Counsel for the applicant that 30 small packs of smack were recovered from the possession of the applicant-Jagdish on 24.12.2005. The recovered article was never weighed. It was neither weighed by the arresting officer nor by the S.H.O. concern nor by the Magistrate who granted the first remand to the accused, even the learned Sessions Judge who disposed of the bail application of the applicant did not care to get the recovered article weighed. After the amendment of 2003 of N.D.P.S. Act, 1985, the weight of recovered article goes to the root of the jurisdiction because only the weight of recovered article determines the jurisdiction.

Therefore, it is hereby directed that all the recovered articles under N.D.P.S. Act as and when are recovered should be weighed either by the arresting officer or the S.H.O. of the police station concerned. In case both the authorities fail to discharge their duty it is incumbent upon the Special Judge/Magistrate, who grants first remand to the accused to get the recovered article weighed.

It appears that the recovered article is below the commercial quantity.

In the circumstances the applicant deserves to bail.

Let the applicant Jagdish be enlarged on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the Chief Judicial Magistrate/Court concerned in Case Crime No. 607 of 2005 u/s 18/20 of N.D.P.S. Act, P.S. Tilhar, district Shahjahanpur.

Let a circular with regard to this order be sent to the all the concerned authority by the office of the Court for compliance.