- (1.) RAVINDRA Singh, J. Heard Sri Virendra Singh and Sri Ajay Singh learned Counsel for the applicant and learned A. G. a
(2.) THIS application is filed by the applicant Nawal Kishore with a prayer that he may be released on bail in case crime No. 110 of 2004, under Sections 18/20 N. D. P. S. Act, P. S. Rajapur district Chitrakoot. From the perusal of the record it reveals that in the present case F. I. R. was lodged by Sri Sharda Prasad, S. I. of P. S. Kotwali, Karvi on 27-10-2004 at about 10. 00 p. m. in respect of the incident, which had occurred on 27-10-2004 at about 7. 45 p. m. at the house of one Rajendra Kumar alias Rajjan Mishra. The distance of police station was 1-1/2km from the alleged place of the occurrence. The F. I. R. was lodged against the applicant and co-accused Rajendra Kumar alias Rajjan, Mewa Lal Jems and Govind Shivhare. According to the prosecution version the first informant along with some other police personnel were on patrolling duty. They came to know that co-accused Givind Shiv Harey and others are wholesale unauthorized dealer of smack, who supply the smack at the different places. The first informant immediately gave a telephonic message to the Additional Superintendent of Police, who gave direction for making necessary enquiry by keeping it confidential. He hired a Marshall Jeep and along with a driver and other police personnel he reached at the police station, Kotwali, Karvi from there he went to the shop of Govind Shivhare. Govind Shivhare was interrogated in respect of doing business of unauthorized smack who disclosed that he was doing the business of smack, but at that time he was not having any material at the shop. He disclosed that he could recover the smack from Rajapur where he has supplied the same, where the Dy. Superintendent of Police on his request has also reached, in his presence the search of co-accused Ram Sajeewan was made and about 1/2 kg brown coloured powder was recovered from a plastic bag, which was in his hand. Thereafter, at the pointing out of co-accused Govind Shivhare the raid was made at the house of co-accused Rajendra Mishra alias Rajjan, the trap party was entered into the house of co-accused Rajendra was Rajjan, where the applicant and two co-accused persons were found in a room. It was told by co-accused Govind Shivhare that the applicant and two other co- accused persons were given the smack for the purpose of sale. The Dy. Superintendent of Police gave his introduction and the applicant and two other co-accused persons were arrested, who disclosed their names as Rajendra alias Rajjan Mishra, Nawal Kishore Gupta and Mewa Lal Jems. From the possession of the applicant 1/2 kg brown coloured powder (smack) kept in polythene bag was recovered, which was in the hands of the applicant and 1/2 kg brown coloured powder was recovered from a plastic bag which was in the hands of co-accused Rajendra alias Rajjan and 1/2 Kg smack was recovered from the possession of co-accused Mewa Lal Jems.
(3.) IT is contended by the learned Counsel for the applicant that the recovery was made from the house of Rajendra alias Rajjan Mishra and it was made at the pointing out of co-accused Govind Shivhare, who admitted that he was the owner of recovered contraband article. IT is further contended that the recovery was made from the house of co-accused Rajendra alias Rajjan Mishra, but the applicant and other co-accused persons were falsely implicated. There is no public witness to support the prosecution story and there is no compliance of provision of Section 50 of the N. D. P. S. Act. It is opposed by the learned A. G. A. by submitting that in the present case the recovery of 1/2 kg smack was recovered from the possession of the applicant and 1/2 kg smack-was recovered from the possession of three other co-accused persons each. The total weight of the recovered smack was two kg. The recovery of such a huge quantity of smack cannot be planted. According to prosecution version the recovery was made from the possession of the applicant, though it was recovered from the house of the co-accused Rajendra alias Rajjan Mishra. Since the recovery was made from the possession of the applicant, so he will be sole responsible person for the alleged recovered contraband article. It is further contended that public witnesses could not be collected because they were not ready to become the witness. In the present case the recovery was made by Gazetted Officer. There is no violation of any provision of Section 50 of the N. D. P. S. Act.;