ABDUL ZABBAR Vs. DEPUTY NARCOTICS COMMISSIONER

JUDGEMENT

(1.) BY this application filed under Section 438 of the Cr.P.C. the applicant Abdul Zabbar has moved the application for grant of anticipatory bail being implicated in Crime No.02/2010 registered by police station CBN, Kota Camp Neemuch for offence under Section 8/18 of the NDPS Act.

(2.) BY this application under Section 438 of the Cr.P.C., Counsel for the applicant has vehemently urged the fact that it was a case of false implication. Even if the prosecution allegations are considered, Counsel submitted that on the initial search of the motorcycle of the applicant, a polythene bag was found from the tool box. However, on opening the polythene bag, the brown coloured powder was found and it was chemically tested, however, it was not indicated to be a narcotic drug. The applicant also submitted that the motorcycle was parked outside of the house or shop and therefore was easily accessible by servants, customers and family members and others. The applicant was not arrested immediately, however, the motorcycle was seized from the possession of the son of the applicant by the personnel of the Narcotic Department, Kota from their factory near the bus-stand and a proper complaint had been filed before the Dy. Commissioner, C.B.N., Gwalior. Thereafter the CBN also has produced a report of the Government Opium & Alkaloid Works, Neemuch (M.P.) which indicated that the packet was not as mentioned and it was unsealed plastic pouch. It contained moist brownish coloured friable lumps and coarse powder since the identification of the packet was not proper. It was sent by this laboratory at Neemuch to the Director, Central Revenue Control Laboratory, Pusa, New Delhi. Thus indicating the sample was not the same. However, the official report from the Govt. of India at New Delhi indicated that it was positive and contained by diacetyl morphine (heroin). He also urged the fact that the packeting detailed under the report said that it was paper packed and marked as "A-I" and under no circumstances can it be considered to be the same sample. Moreover, the respondent Department was unable to hold that the substance recovered was heroin. It was only the final report of the Central Laboratory at Delhi which indicates that it was so. And Counsel urged that the case was entirely manipulated. The proceedings were not in accordance with the law. Counsel prayed for grant of anticipatory bail to the applicant who was actually a scrap merchant and car mechanic.