MADAN LAL Vs. STATE

JUDGEMENT

(1.) - I have heard learned counsel for the applicant as well as learned Public Prosecutor for the State. I have perused the statement of witnesses.

(2.) It is contended by the learned counsel for the applicant that he has been falsely implicated in this case. Further, it is contended that co-accused Om Prakash was arrested in a case with regard to recovery of fake currency note from him and in that FIR he gave an information that the present applicant is owner of Himachal Delux Dabha is indulged in illicit trafficking of opium. The said information was given on 7.10.2005 and in pursuance thereof, a search was made upon the said Dhabha and it is alleged that 5 kg opium was recovered from the room of said Dhabha. As per the recovery memo, the said room was upon room of the Dhabha and the so called opium was lying under the pillow It is contended by the learned counsel for the applicant that applicant was not having any knowledge with regard to opium, which was lying in the room of the Dhabha. Therefore, he has vehemently given his consent for inspection when notice under Sec. 42 of the Narcotic Drugs And Psychotropic Substances Act for search was given to him. It is also contended that after the so called recovery, the applicant was arrested. Therefore, the applicant has been falsely implicated in this case on the basis of the information dated 8.10.2005, which is said to be given by the applicant that he and co-accused Om Prakash both purchased the alleged recovered 5 kg opium from one Nand Lal. It is contended that the recovery was made on 7.10.2005 and information with regard to purchase of said opium was recorded on 8.10.2005. The Dhabha from where the said opium has been recovered is open for public and so called recovery has been made upon the information given by co-accused Om Prakash that the present applicant is indulged in illicit trafficking of opium.

(3.) Further, it is contended by the learned counsel for the applicant that first bail application of the applicant was rejected by this Court while granting liberty to him to file fresh bail application after recording the statement of recovery. It is contended that out of total prosecution witnesses, PW-2 Prabhu, who was witness of recovery has turned hostile before the court and as per the statement of PW-8 Rakesh Kumar, it cannot be said that the said opium was recovered from the conscious possession of the applicant. Admittedly, the place where the applicant was running Dhabha is an open place and as per the recovery memo, at the time of search there was no lock upon the said room from where the opium was recovered. It is further contended that a bare perusal of the information given by co-accused Om Prakash will reveal that he has only alleged in his information that the applicant is indulged in illicit trafficking of opium. He has not given any information that the opium is lying in the premises and the same can be recovered. Further, as many as 18 witnesses are yet to be examined and trial of the case will take long time. The recovery in the present case has not been made upon the information of the applicant, therefore, he has been falsely implicated in this case. Thus, he may be enlarged on bail.