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Pappu @ Jitendra v. State Of U.P. - CRIMINAL MISC. BAIL APPLICATION No. 8702 of 2005 [2005] RD-AH 6822 (2 December 2005)


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Criminal Misc Bail Application No. 8702 of 2005

Pappu alias Jitendra.......Vs....... State of U.P.


Hon'ble Ravindra Singh, J.

Heard Sri SatishTrivedi Senior Advocate assisted by Sri Roshan Khan learned counsel for the applicant and learned A.G.A.

It is contended by the learned counsel for the applicant that in the present case the F.I.R. was lodged by S.S.I. Sri Jai Ram Singh on 25.10.2004 at 10.10 p.m. in respect of the incident which had occurred on 25.10.2004 at about 8.30 p. m.. It is alleged that the first informant and others were busy in checking of the vehicles. In the mean time the applicant and one other co-accused came on a motorcycle, but seeing the police party the motorcycle was stopped and tried to go back. Having suspicion they were surrounded by the police but the applicant who was pillion rider  of the motor cycle  was apprehended and the other co-accused successfully escaped after leaving his motorcycle. The applicant disclosed that he was having opium in his bag. The applicant was given an offer by the police to give a search before any Gazetted Officer or a Magistrate, but he replied  that he was having faith on arresting officer and refused to give his search before any Gazetted Officer or any Magistrate. The search was taken by the police  and about  5 kg opium was recovered from the bag of the applicant. The recovered contraband was identified as opium by its smell. The recovered contraband was having the weight of about 5 kg. Thereafter, 70 grams opium was taken from recovered quantity for the purposes of sample and the same was sealed. The motorcycle no. UP-25E-8670 Yamaha was also seized. The applicant disclosed the name of co-accused as Brajnandan. It has been confessed by the applicant that he was involved in the business of sale and purchase of opium and smack. He further stated that co-accused Brajnandan was having smack.

It is further contended that there was no independent witness to support the prosecution story and without weighing the recovered contraband, its  weight  was mentioned in the recovery memo about 5 kg. It is further contended that on the basis of the recovery of motorcycle  the applicant was made an accused in case crime  no. 21/77 of 2004 under Section 41/102 Cr. P. C. and Section 412 I.P.C., but during investigation the I.O. came to conclusion that the said motorcycle was not stolen and submitted the final report. It is further contended that the recovered contraband was not opium because by its smell it was assessed as opium its sample was sent to Chemical Examiner for analysis, but the  report of the Chemical Analyst  shows that the sample was having 2% morphine,  according to the report opium was not found in the said sample. As per table and schedule of NDPS Act morphine was placed at Serial No. 77 whereas opium has been separately defined at serial No. 92. The small quantity of morphine has been given as 5 grams and its commercial quantity is 250 grams whereas the small quantity of the opium is given as 25 grams and its commercial is 2.5 kg. According to report of Chemical Analyst the morphine was found  2%. On the basis of this  ratio  it is calculated that only 100 grams morphine was present in the alleged recovered contraband having the weight of 5 kg. It is less than commercial quantity . It is further contended that according to prosecution version one motorcycle no. UP-25E-8670 recovered from the alleged place of occurrence on 25.10.2005 and the applicant was shown its pillion rider, but the affidavit has been filed by one Brajnandan S/o Mathura Prasad, the vehicle mechanic,  clearly stating therein that on 18.10.2004 one motorcycle no. UP-25-E-8670  was brought to the shop which was taken by Munna S/o Hajir Ali on 25.10.2004 at about 11.00 a.m. At the pretext that he want to have lunch, but subsequently, he came to know that the motorcycle was seized by the police. This motorcycle was not seized at about 8.30. p.m. on 25.10.2004. It also belies whole prosecution story. It is further contended that the applicant was arrested by the police from his house and he was taken to the police station concerned where he was illegally detained and falsely challaned  in the present case by planting the recovery of alleged contraband. It is further contended that the applicant is not having any criminal antecedent and there is no compliance of Sections 43, 44, 50 and 57 of the N.D.P.S. Act.

It is opposed by the learned A.G.A. by submitting that the recovered quantity of contraband is 5 kg opium, but it has not been denied that from the sample only 2% morphine was reported by the Chemical Analyst and opium was not found in that sample.

After considering the facts and circumstances of the case,  submissions made by the learned counsel for the applicant, learned A.G.A. and specially considering the fact that the morphine and opium are separate contrabands and have been defined separately. Though, the report of Chemical Analyst has not been filed by the applicant, but its result that sample was having 2% morphine has not been denied by the learned A.G.A. and according to this report no opium was found in the said sample and if the calculation is made on the basis of percentage of the morphine present in the sample, the quantity of will be 100 grams which is  less than commercial quantity and without expressing any opinion on the merits of the case the applicant is entitle for bail.

Let the applicant Pappu alias Jitendra involved in case crime no. 2176 of 2004, under sections 8/18 N.D.P.S. Act, P.S.  Prem Nagar, District Bareilly be released on bail on his furnishing a personal bond and two sureties each of the like amount to the satisfaction of the court concerned.

Dated: 02.12.2005.



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