Research › Search › Judgment

Uttarakhand High Court · body

2013 DIGILAW 181 (UTT)

GANESH SINGH LAMGARIA v. STATE OF UTTARAKHAND

2013-04-05

Alok Singh

body2013
JUDGMENT Hon’ble Alok Singh, J. These are the bail applications seeking regular bail in F.I.R. No. 14/13, under Section 8/20 N.D.P.S. Act, Police Station Kathgodam, District Nainital. 2. Counter affidavits are handed over in the Court and are taken on record. 3. On being asked by Mr. Hari Om Bhakuni, learned Brief Holder for the State, Sub-Inspector Inder Jit, Investigating Officer of the present case, submits that applicants were arrested by S.H.O. Sanjay Kumar Pandey and material was seized by the S.H.O. on 26.02.2013; He (Inter Jit) was appointed as Investigating Officer and investigation was handed over to him on 26.02.2013 at about 22:45; Investigating Officer has not checked the contraband, allegedly recovered from the applicant, nor the same was deposited in the malkhana under his signature and seal; further submits that accused/applicants were produced before the court for taking remand on 27.02.2013, however, contraband was not produced before the court along with the accused. He further submits on 28.02.2013, application was moved before the court for taking sample and after taking permission from the court sample was taken on 28.02.2013. 4. Mr. M.S. Pal, Senior Advocate with Mr. H.C. Lahoni, Advocate for the applicants submits that since Investigating Officer did not care to check the contraband and the contraband was not deposited under his signature and seal in malkhana, therefore, entire exercise seems to be highly doubtful. 5. I have perused the case diary so produced before me by Mr. Hari Om Bhakuni, Brief Holder for the State and I find that on 28.02.2013, there was an endorsement of the Circle Officer to the effect sample was drawn after obtaining permission of the court, but it has not been mentioned that sample was drawn in the presence of the Magistrate or Magistrate has checked, compared and certified the correctness of the inventory, seal, seizure memo and sample. 6. It is surprising in the present case, accused was produced before the court on 27.02.2013 for remand and contraband was not produced along with the accused. Judicial Officer concerned has passed the remand order mechanically. He has not cared to ask the Investigating Officer where the contraband so recovered and related inventories were. It seems after obtaining permission to take out the sample on 28.02.2013, police personal have taken out the sample after breaking the seal and seal was refixed thereafter by the police personal only. 7. He has not cared to ask the Investigating Officer where the contraband so recovered and related inventories were. It seems after obtaining permission to take out the sample on 28.02.2013, police personal have taken out the sample after breaking the seal and seal was refixed thereafter by the police personal only. 7. This practice should be stopped immediately. All the courts of this State are duty bound to follow the judgment dated 19th March, 2013 of the Division Bench passed in Criminal Appeal No. 70 of 2008, Prema Shah Vs State of Uttarakhand. In the case of N.D.P.S. Act accused along with contraband, so recovered, shall be produced before the Magistrate along with inventories and case diary and learned Magistrate shall check, verify and compare the inventories, seal and signature on the seal cover as well as sample seal of seal of the police officer and shall issue the certificate regarding the genuineness thereof. Seal cover shall be opened in the presence of the Magistrate and sample shall be drawn in the presence of the Magistrate and shall be sent under the seal and the signature of the Magistrate only. Magistrate shall allow photographs to be taken of the contraband. After taking sample rest of the contraband shall be kept under the seal cover; Magistrate shall put this seal and signature on his seal cover along with all the relevant entries on the seal cover and shall return to the Investigating Officer under the seal and signature of the court along with full details thereon to be kept in the malkhana. 8. Considering the totality of the facts and circumstances of the case, I direct, let the applicants be enlarged on bail on furnishing their personal bond and two sureties of Rs. 50,000/- each, to the satisfaction of Special Judge, Nainital. 9. Copy of this order shall be circulated to all the Session Judges and Magistrates concerned for strict compliance.