IMPORTANT POINT
Bail--Contraband--Recovery of 12 Kg. opium--Bail declined.
Contraband--Opium--Substance would be opium even it it contains some neutral material when the percentage of opium present is more than 0.2%-to look for presence of pure morphine will only run counter to definition.

Nawab Singh, J.

1. This is an application for bail under Section 439 of the Criminal Procedure Code filed by Avtar Singh alias Tara, petitioner in case registered against him vide First Information Report No. 133 dated August 27, 2005, under Section 18 of the Narcotic Drugs Psychotropic Substances Act, 1985 (for short "NDPS Act") at Police Station Sardulgarh, District Mansa.

2. The story of the prosecution is that on August 27, 2005 Bhupinder Singh, Station House Officer along with other Police officials was present at Sirsa crossing T. Point Sardulgarh in connection with general crime checking. He received secret information that accused-petitioner along with his co-accused Baldev Singh brought opium in truck No. PCL-9967 and would sell the same at Truck Union, Sardulgarh. Information was sent to the Police Station Sardulgarh. Nakabandi was picketed on the gate of Truck Union, Sardulgarh. Deputy Superintendent of Police also reached the spot and joined the Police party headed by Bhupender Singh. Surjit Singh came and informed that Petitioner and Baldev Singh had brought the truck No. PCL-9967 and had parked the same under a Kikar tree behind the truck union. The police reached the spot and found the truck parked there. The petitioner and his co-accused were not found nearby the truck. Truck was subjected to search. It was found that in the tool-box under the rear seat, opium wrapped in a polythene paper was kept in a plastic bag. On weighment it was found to be 12 Kgs. The opium was taken into possession. The entire proceedings were attested by the DSP. Search for the accused was made. Both of them were apprehended near the bridge on Sadhuwala, Sardulgarh Road on the same day. Accordingly, they were arrested.

3. The bail has been sought on the grounds-(I) that the accused-petitioner was not arrested on the spot, so, it could not be said that he was carrying opium in the truck apprehended by the Police; (2) that one Harpal Singh Sub Inspector, who was present with the Police party headed by Bhupender Singh, is co-brother of one Jarnail Singh who is an accused in case FIR No.63 dated May 14, 2003, registered at Police Station Sardulgarh, District Mansa, under Section 307 IPC etc. and in that case son of the petitioner has been cited as a witness of the occurrence. Jarnail Singh and his co-brother Harpal Singh were pressurising the son of the petitioner not to depose against Jarnail Singh to which he did not agree and ultimately to take the revenge the present case was foisted upon the petitioner; (3) that the sample of 10 grams was sent to the Forensic Science Laboratory Punjab, Chandigarh and it was found that quantity of morphine was 1.0% which proves that actual weight of the opium seized was not 12 Kgs, it was only 120 grams; and (4) that Surjeet Singh independent witness is a stock witness and as such no reliance should be placed on his testimony. To support the submission advanced, the learned counsel ha relied upon Ansar Ahmed v. State (Govt. of NCT of Delhi), 2005 (4) RCR (Criminal) 393.

4. Against this, the learned State counsel has strenuously urged that it cannot be said that the accused was not apprehended on the spot because prior to the seizure of the truck, the Station House Officer had received the information that the petitioner and his co-accused Baldev Singh were coming in truck No. PCL-9967 carrying huge quantity of opium and the information of receipt of information mentioning the name of the petitioner and his co- accused and the truck was sent to the Police Station on the basis of which Daily Diary Report was registered. If the case, as alleged by the learned counsel for the petitioner, was to be foisted upon the petitioner, in that eventuality question of recording of DDR before actual apprehension of the truck would not have arisen. It was further urged by the learned State counsel that accused has a criminal background and facing number of criminal trials viz. (1) FIR No. 22 dated February 01,