Shiv Shanker - (1.) -This is the first bail application moved on behalf of the applicant Avinash Yadav, involved in Case Crime No. 8 of 2006, under Section 8/21/27 of N.D.P.S. Act, Police Station Govind Nagar, district Kanpur Nagar.
(2.) HEARD learned counsel for the applicant and learned counsel appearing on behalf of the Union of India, the opposite party No. 1 as well as the learned A.G.A. on behalf of the State, opposite party No. 2. Learned counsel for the applicant has submitted that he is quite innocent and he has not committed any offence. There was previous enmity with public witnesses Alam Gir and Mohd. Aftab Alam as well as Constable Maimuddin, posted as Narcotic Drugs Control Bureau, Varanasi, who is the real relative of Alam Gir and Mohd. Aftab Alam. He has been wrongly and illegally implicated in the present case with the help of complainant S. K. Singh. It is further submitted that witnesses Alam Gir and Mohd. Aftab Alam had taken Rs. 1,15,000 from the applicant for the purpose of running the business of leather goods in January, 2005, and thereafter, they have neither established any shop nor they have started the business of leather goods item and grab the amount of Rs. 1,15,000 of the applicant. When the applicant demanded the said amount, on 7.7.2005, both the above witnesses and Constable Maimuddin threatened the applicant and beaten him in Kanpur Nagar at House No. 13/67 Raizvi Road, Kanpur Nagar and on the same day, they wanted to lodge the F.I.R. on 7.7.2005 at Police Station Bekanganj, district Kanpur Nagar but the police of police station Bekanganj have not registered any F.I.R. that is why on 8.7.2005, the applicant moved an application before the higher authorities as well as the Chief Justice of Allahabad High Court, Superintendent of Police, Kanpur Nagar, Inspector General of Police, Kanpur Region, Kanpur. On the application moved by the applicant, the Senior Superintendent of Police, Kanpur Nagar, directed the Circle Officer, Anwarganj, Kanpur Nagar to make inquiry and thereafter on 9.10.2005, Constable Maimuddin and Sri S. K. Gupta, officer N.D.P.S. Control Bureau, Varanasi, as well as Alam Gir and Aftab Alam reached at the house of applicant and forcibly arrested him from his house and detained by complainant officer, N.D.P.S. Bureau, Varanasi, at that time, they have taken the signatures of the applicant on blank papers and released the applicant on 10.10.2005. Thereafter, the applicant had moved several applications by registered post to the higher authorities. It is further submitted that the original addresses have been knowingly concealed by both the public witnesses in the fard baramdagi to be the public witnesses of the alleged occurrence while there are several documents regarding it, This fact clearly indicates that the alleged so called independent witnesses are well known persons of the applicant. It is further submitted that Alam Gir, the public witness, arranged some heroin weighing about 100 grams and thereafter-aforesaid heroin mixed in some type of powder only for showing the heavy quantity of heroin.
(3.) IT is further submitted that there is no compliance of Sections 42, 50, 52, 52A, 55 and 57 of N.D.P.S. Act, hence the arrest of the applicant is quite unjust, illegal and making the case doubtful. IT is further submitted that the sample from recovered contraband article was sent for chemical examination and according to the report ; it is liable to be deemed that the recovered article is below the commercial quantity. In such circumstances, this bail application is liable to be allowed. On the other hand, learned counsels appearing on behalf of the opposite parties have submitted that 1 kg. and 65 grams heroin was allegedly recovered from the possession of the present applicant at the time of his arrest, which are much more than the commercial quantity and the same could not be planted falsely against the applicant. He was involved in carrying the business of heroin and he was arrested with the heroin by the complainant in presence of the public witnesses. According to the huge recovery of the heroin, it is liable to be deemed that the public witnesses and Constable Maimuddin have not falsely implicated him. He could be implicated falsely by showing only 25 grams heroin, which is below commercial quantity. It is further submitted that Section 67 of the N.D.P.S. Act is attracted and prima facie case is made out. Therefore, it is not liable to be denied that the applicant is not guilty and it is also not liable to be deemed that he will not commit again such type of offence after releasing on bail.;