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2023 DIGILAW 96 (UTT)

Sher Singh v. State of Uttarakhand

2023-01-16

RAVINDRA MAITHANI

body2023
JUDGMENT Ravindra Maithani, J. - Applicant Sher Singh is in judicial custody in FIR No.01 of 2022, under Sections 8/21/60 of the Narcotic Drugs and Psychotropic Substances, 2012 ('the Act'), Police Station-Lalkuan, District- Nainital. He has sought his release on bail. 2. Heard learned counsel for the parties and perused the record. 3. According to the FIR, on 31.12.2022, late in the evening, the applicant was intercepted when he was driving a motorcycle. The applicant tried to run away, but, he was apprehended. He revealed that he had smack. He was given an option under Section 50 of the Act. Thereafter, when search was made before a Gazetted Officer, it is the prosecution case that 316 grams smack was recovered from the applicant. 4. Learned counsel for the applicant would submit that the case is false; the applicant has no previous criminal history; it is a case of non-compliance of Section 50 of the Act; there is no independent witness; there is no photograph of the alleged recovery; the case becomes false even on the basis of the fact that according to the police, they wrote the recovery memo in the head light of a vehicle as well as with the help of a torch. It is argued that such deep light would, in fact, make it unable to record any text. While concluding his arguments, learned counsel would also submit that it is case of recovery of 316 grams of smack, therefore, it is a case fit for bail because this Court had granted bail in a case where the recovery was 327 grams of smack. He tendered, for the perusal of the Court, the order of this Court, passed on 16.11.2022, in BA1 No.2497 of 2022. 5. Learned State Counsel would submit that commercial quantity of smack was recovered form the applicant; it is a case of true compliance of Section 50 of the Act. Hence, there is no reason to grant him bail. 6. The trial is already underway. Therefore, much of the discussion is not expected of. First and foremost, this Court would record that merely based on the quantity of any contraband, generally, bail are not granted. There are various factors, which govern grant of bail. Of course, under the provisions of the Act, in order to ascertain the minimum, commercial or otherwise quantity of the contraband, the weight has its significance. First and foremost, this Court would record that merely based on the quantity of any contraband, generally, bail are not granted. There are various factors, which govern grant of bail. Of course, under the provisions of the Act, in order to ascertain the minimum, commercial or otherwise quantity of the contraband, the weight has its significance. It is also important that in case the contraband, under the provisions of the Act, is found to be commercial in quantity, the provisions of bail are then governed under Section 37-A of the Act. In such cases, unless there are reasons to believe that the accused has not committed any offence, bail is not granted. In view of it, the argument that this Court had once granted bail in a matter where 327 grams smack was recovered, therefore this case is also fit for bail, is erroneous and misconceived. 7. According to the prosecution, allegedly commercial quantity of smack was recovered from the applicant. Before the search could have been made, the applicant was informed about his right to be searched before a Magistrate of a Gazetted Officer. The FIR records that the applicant opted to be searched before the Gazetted Officer, and, thereafter, search was made in the presence of the Gazetted Officer and commercial quantity of smack was recovered. 8. The reference to BA1 No.2497 of 2022, as made on behalf of the applicant, is true that in that case 327 grams smack was allegedly recovered, but the Court had granted bail. But, in that order, this Court has recorded that that was a case of non compliance of Section 50 of the Act. Instant is not such a case. 9. Having considered, this Court is of the view that there is no reason to grant bail to the applicant. Accordingly, the bail application deserves to be rejected. 10. The bail application is rejected.