PAPPU ALIAS JITENDRA Vs. STATE OF U P

JUDGEMENT

(1.) RAVINDRA Singh, J. Heard Sri Satish Trivedi Senior Advocate assisted by Sri Roshan Khan learned Counsel for the applicant and learned A. G. A.

(2.) 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.

(3.) 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.