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2020 DIGILAW 143 (UTT)

Narayan Singh Bisht v. State Of Uttarakhand

2020-02-27

ALOK KUMAR VERMA

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JUDGMENT Alok Kumar Verma, J. - This First Bail Application has been filed for grant of regular bail in connection with FIR No.212 of 2019, registered with Police Station Lalkua, District Nainital for the offence punishable under Section 8/21/60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short as 'the Act, 1985'). 2. An FIR was lodged by Sub-Inspector Jagbir Singh on 10.11.2019 at 20:30 hrs. with the allegations that he was checking vehicles along with other police officials on 10.11.2019. The applicant came there on Scooty No.UK04-Z 2273 without helmet. The police party stopped the applicant and directed to show the papers of the scooty. The applicant opened the dikki of the scooty from which 1.720 grams Charas (Contraband) was recovered. In spite of an endeavour, no independent witness could be secured. The applicant was arrested at 18:35 hrs. 3. Heard learned counsel for both the parties and perused the records. 4. The learned counsel appearing for the applicant/ accused submits that the applicant is an innocent person; the applicant has been falsely implicated; entire recovery memo was totally false; neither any sample of Charas (Contraband) was taken for the purpose of sending the same to the Forensic Science Laboratory nor any sample was sealed; the provision of Section 50 of the Act, 1985 was not complied with; there was no independent witness of the aforesaid occurrence; the applicant has no criminal history; the applicant is in custody since 10.11.2019. 5. The learned A.G.A. appearing for the State of Uttarakhand submits that the applicant was apprehended by the police during the vehicles' checking and at that time, a chance recovery of illegal Charas (Contraband) was effected from the dikki of the scooty of the applicant; after recovery, the recovered Charas (Contraband) was weighed on the spot from the weighing machine; the recovered Charas (Contraband) was found 1 Kg.700 grams.; thereafter, the recovery memo was prepared and the applicant was arrested; the sample of recovered Charas (Contraband) was taken in the presence of the learned Additional Sessions Judge/Special Judge (N.D.P.S. Act), Nainital; on the directions of the said Court, the samples were sent to the Regional Forensic Science Laboratory for examination. 6. In this matter, the FIR discloses that in spite of an endeavour, no independent witness could be secured. According to FIR, this was a chance recovery. 6. In this matter, the FIR discloses that in spite of an endeavour, no independent witness could be secured. According to FIR, this was a chance recovery. In the case of Makhan Singh vs. State of Haryana,2015 4 CCSC 1790, the Hon'ble Apex Court has held that compliance with Section 50 of the Act, 1985 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container etc, which the accused may be carrying ought to be searched. In that matter, since the vehicle was searched and the contraband was seized from the vehicle, the Hon'ble Apex has held that the compliance with Section 50 of the Act, 1985 was not required. 7. The preamble of the Act, 1985 shows that the object of this Act is to consolidate and amend the law relating to narcotic drugs and to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances etc. 8. Section 37 of the Act, 1985 contains specific provisions with regard to grant of bail in respect of certain offences enumerated under the said Section. They are- (i) In the case of a person accused of an offence punishable under Section 19, (ii) under Section 24, (iii) under Section 27-A, and (iv) for offences involving commercial quantity. 9. The accusation in the present case is with regard to the commercial quantity. Once the public prosecutor opposes the application for bail to a person accused of the enumerated offences, in case, the Court proposes to grant bail to such a person, two conditions are to be mandatorily satisfied in addition to the normal requirements under the provisions of the Code of Criminal Procedure, 1973 or any other enactment, (i) the Court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence; (ii) that person is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. The non-obstante clause with which this Section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail. It is the mandate of the legislature which is required to be followed. The non-obstante clause with which this Section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail. To check the menace of dangers drugs and psychotropic substances flooding the market, the Parliament has provided that the person accused of the offences under the Act should not be released on bail during the trial unless the mandatory conditions provided under Section 37 of the Act, 1985 are satisfied. 10. In the light of the facts and circumstances of the present case, it cannot be said that these mandatory conditions have been satisfied. From the perusal of the evidences, collected during investigation so far, it prima facie appears that the applicant was involved in this offence. Therefore, there is no good ground to release the applicantaccused on bail at this stage, therefore, the bail application is liable to be rejected. The bail application is rejected accordingly. 11. It is clarified that the observations made regarding the bail application are limited to the decision, in the light of the facts, provided by the parties at this stage, as to whether the bail application should be allowed or not and the said observations shall not effect the trial of the case.