Ashok Chauhan @APPELLANT@Hash State Of Uttarakhand

V.K. Bist, J

Mr. Vinod Sharma, Advocate for the applicant and Mr. S.S. Adhikari, A.G.A. for the State of Uttarakhand.

Applicant Ashok Chauhan, who is in jail in connection with FIR No.27 of 2017, Under Section- 8, 20 of N.D.P.S. Act, registered at P.S. Mori,

District Uttarkashi, has sought his release on bail.

On 03.12.2017, an FIR was lodged against the applicant and one Mr. Pushpendra, alleging therein that, both the accused were apprehended while

they were coming from Mori market and during search of the bags hanged by them 2.50 kg. charas was recovered from the possession of the

applicant and 2.350 kg. charas was recovered from the possession of co-accused Mr. Pushpendra.

Learned counsel for the applicant submitted that while arresting the applicant, the provision of Section 50 and Section 52 of N.D.P.S. Act have not

been complied with. He submitted that before making arrest of the applicant, the officer concerned has not informed the applicant about his legal right

to be searched before the Gazetted Officer. Furthermore, applicant has no criminal history. He submitted that applicant has falsely been implicated in

the instant case, which is clear from the fact that alleged recovery has not been made in presence of independent witnesses. In support of his

submission, the learned counsel for the applicant relied on the paragraph 29 & 32 of (2011) 1 SCC 609. Same are quoted hereinbelow:

In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a

safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of

planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person

intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the

obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict

compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is

recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may

not choose to exercise the right provided to him under the said provision

We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted

officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an

endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other

officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well.

Learned counsel for the applicant further submitted that in case, the applicant is granted bail, he will not misuse the same and will furnish the bail

surety as per the satisfaction of this Court. He submitted that applicant is not in a position to influence the witnesses/trial in any manner. He submitted

that on the basis of evidence being relied by the prosecution, the applicant cannot be convicted.

Learned A.G.A. opposed the bail application and submitted that the alleged contraband recovered from the possession of the applicant is more than

commercial quantity. He submitted that there is no reason for the police party to falsely implicate the applicant and invest huge amount in purchasing

the contraband to implicate the applicant. He further submitted that police personnel tried their level best to bring the independent witness, but nobody

came forward and only thereafter the search was made before the Circle Officer who is Gazetted Officer. Therefore, it cannot be said that arrest of

the applicant is in violation of Section 50 of the N.D.P.S. Act. He also submitted that other necessary formalities were also completed as per the law.

I have considered the submission of learned counsel for the parties.

The Hon’ble Apex Court in the matter of Vaman Narian Ghiya vs. State of Rajasthan, reported in (2002) 2 SCC 281 has discussed the term

bail. The Hon’ble Apex Court has also observed that while considering bail application, detailed discussion of the evidence and elaborate

documentation of the merits is to be avoided. Paragraph Nos.6, 7, 8 & 11 of the said judgment are being referred herein under:-

""Bail"" remains an undefined term in Cr.P.C. Nowhere else has the term has been statutorily defined. Conceptually, it continues to be understood as

a right for assertion of freedom against the State imposing restraints. Since the U.N. Declaration of Human Rights of 1948, to which Indian is a

signatory, the concept of bail has found a place within the scope of human rights. The dictionary meaning of the expression `bail' denotes a security for

appearance of a prisoner for his release. Etymologically, the word is derived from an old French verb `bailer' which means to “give†or to

“deliverâ€, although another view is that its derivation is from the Latin term “baiulareâ€, meaning “to bear a burdenâ€. Bail is a conditional

liberty. Strouds' Judicial Dictionary (4th Edition 1971) spells out certain other details. It states:

… When a man is taken or arrested for felony, suspicion of felony, indicated of felony, or any such case, so that he is restrained of his liberty. And,

being by law bailable, offereth surety to those which have authority to bail him, which sureties are bound for him to the King’s use in a certain

sums of money, or body for body, that he shall appear before the Justices of goal delivery at the next sessions, etc. Then upon the bonds of these

sureties, as is aforesaid, he is bailed - that is to say, set at liberty until the day appointed for his appearance.

Bail may thus be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners,

and at the same time involves participation of the community in administration of justice.

Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. Liberty of a citizen is undoubtedly important but

this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the

investigational right of the police. It must result in minimum interference with the personal liberty of the accused and the right of the police to

investigate the case. It has to dovetail two conflicting demands, namely, on the one hand the requirements of the society for being shielded from the

hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental cannon of criminal

jurisprudence, viz, the presumption of innocence of an accused till he is found guilty. Liberty exists in proportion to wholesome restrain, the more

restraint on others to keep off from us, the more liberty we have.

The law of bail, like any other branch of law, has its own philosophy, and occupies an important place in the administration of justice and the

concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and

presumption of innocence in favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on the assumption

of his guilt.

While considering an application for bail, detailed discussion of the evidence and elaborate documentation of the merits is to be avoided. This

requirement stems from the desirability that no party should have the impression that his case has been pre-judged. Existence of a prima facie case is

only to be considered. Elaborate analysis or exhaustive exploration of the merits is not required. Where the offence is of serious nature the question of

grant of bail has to be decided keeping in view the nature and seriousness of the offence, character of the evidence and amongst others the larger

interest of the public.

The Hon’ble Apex Court in many of the cases has laid down certain norms for grant of bail. Relevant paragraphs of two such judgments are

quoted hereinafter.

(i) In paragraph no.10 of the judgment in the matter of Kanwar Singh Meena Vs. State of Rajasthan & another, (2012) 12 SCC 18,0 the Hon’ble

Apex Court has held as under:-

Thus, Section 439 of the Code confers very wide powers on the High Court and the Court of Sessions regarding bail. But, while granting bail, the

High Court and the Sessions Court are guided by the same considerations as other courts. That is to say, the gravity of the crime, the character of the

evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating

the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken

into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have

to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the accused. The court must not

undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature

comments are likely to deprive the accused of a fair trial.

(ii) In paragraph nos.3 & 4 of the judgment in the matter of Ram Govind Upadhyay Vs. Sudarshan Singh & others, (2002) 3 SCC 59,8 the

Hon’ble Apex Court has held as under:

Grant of bail though being a discretionary order- but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of

course. Order for Bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the

contextual facts of the matter being dealt with by the Court and facts, however, do always vary from case to case. While placement of the accused in

the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always

be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail-

more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.

Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture, though however, the

same are only illustrative and not exhaustive, neither there can be any. The considerations being:

(a) While granting bail the Court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails

a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh

with the Court in the matter of grant of bail.

(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a

prima facie satisfaction of the Court in support of the charge.

(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant

of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to

an order of bail.

Further, in the matter of State of Rajasthan, Jaipur vs. Balchand @ Baliay, reported in (1977) 4 SCC 308, the Hon’ble Supreme Court has

categorically said that basic rule is bail and not jail.

Therefore, basic rule is bail and not jail. Further, while granting bail, the most important factor to be considered is the nature of offence and the

possibility of witnesses/trial being influenced by the accused person.

I have carefully considered the submission of learned counsel for the parties. I am of the view that this is a fit case for grant of bail.

The bail application is allowed. However, it is made clear that trial Court shall not be influenced in any manner by the observation made in this

order.

Let the applicant be released on bail, on executing personal bond and furnishing two reliable & local sureties, each of like amount, to the

satisfaction of Court concerned.

Before parting, this Court intends to observe that, in many cases relating to N.D.P.S. Act, First Information Report is being lodged in cyclostyle

manner. For example, while patrolling, the police party suddenly finds a suspicious person, who, after seeing the police party, tries to flee away. Police

party apprehends that person immediately. In most of the cases, no independent witness is found. Though, search is made by the Gazzetted Officer;

but, again, in almost every case, he happens to be the police officer. Compliance is shown to be made but question arises whether in absence of

independent witness, innocent person can be implicated falsely? In such a situation, possibility of innocent person being implicated cannot be ruled out.

Police party, apprehending the accused, even do not bother to enquire from that person the name of the person from whom he purchased the

contraband. In almost every case, accused persons happen to be carrier and, on the basis of F.I.R. and evidence of police personnel, they are

convicted. Now-a-days still cameras and video cameras are easily available and videography of alleged recovery showing the involvement of the

accused can easily be done, which is being done in most of the cases when arrest is made under the provisions of Prevention of Corruption Act. This

aspect can be looked into. Therefore, I direct that a copy of this order be sent to the Home Secretary of the State and Director General of Police,

Uttarakhand forthwith for taking necessary action.