SHEO LOCHAN TIWARI Vs. STATE OF U.P.

JUDGEMENT

(1.) The instant bail application has been moved on behalf of the applicant Sheo Lochan Tiwari S/o Sri Hira Mani Tiwari, resident of Bhabhauri, P.S. Koirauna, District Sant Ravi Das Nagar (Bhadohi) to release him on bail during the pendency of trial before the court below in Case Crime No.28 of 2013, under Sections 8/18 and 20/22 of N.D.P.S. Act, P.S. Koirauna, District Sant Ravi Das Nagar (Bhadohi).

(2.) Shorn of necessary details, the prosecution case in nutshell is that an FIR was lodged by Vijay Narain Mishra, S.H.O., Koirana, District Sant Ravidas Nagar (Bhadohi) on 31.5.2013 at 5.45 pm in respect of the incident occurred on the same day at about 4.20 pm alleging therein that from the house of the applicant 30 bags of poppy straw weighing 438 kg, three bags of Ganja weighing 38 Kg, one plastic bag of opium weighing 825 gm, and three small bags of poppy hush weighing 59 Kg. have been recovered and also Rs.52,25,000/- in a bag.

(3.) The crux of the argument of the learned counsel for the applicant is that the applicant is absolutely innocent and has been implicated by the police showing false recovery of narcotic substances from his house. No compliance of the mandatory provisions of the said Act has been done at the time of alleged search and seizure. There is no public witness named in the First Information Report who was present at the time of alleged raid conducted at the house of the applicant. The recovered samples were sent for examination to chemical analyst at Ram Nagar Varanasi Laboratory. There is difference in the weight of each contraband drawn for chemical examination sent to the Laboratory which makes the recovery doubtful. It creates doubt as to whether the sample sent to chemical examiner was the same which was taken on the spot. According to the chemical analyst from the sample of Opium 3.1% of Morphine was found and in respect of other contraband no percentage has been mentioned in the report. On raking, the percentage of the Opium comes to very small quantity. It is not the total weight of the substance recovered that is material, but the total percentage content of narcotic drug translated into weight that is relevant for ascertaining the quantity recovered from the accused. Out of total substance 103.50 gm sent for analysis, the quantity of opium comes to only 3.1% which is less than the commercial quantity.