Devendra Singh vs State Of Uttarakhand

Alok Kumar Verma, J

Heard Mr. Shakti Singh, learned Advocate for the applicant and Mr. Pratiroop Pandey, learned AGA assisted by Mr. Saurabh Pandey, learned

Brief Holder for the State of Uttarakhand.

This First Bail Application has been filed for grant of regular bail in connection with F.I.R. No.59 of 2019, registered with Police Station Kotwali

Bageshwar, District Bageshwar for the offence punishable under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985

(hereinafter referred as, ""the Act, 1985"").

Facts, to the limited extent necessary are that an F.I.R. was lodged by Sub-Inspector, Akram Ahmad on 13.04.2019 with the allegations that, on

13.04.2019, while he was on patrolling duty along with other police personnel, they saw a person (present applicant). On seeing the police personnel,

the applicant tried to escape, upon which, having suspicion, the police party intercepted the applicant. On inquiry, the applicant told the police party that

he had Charas (contraband) in his possession. On his disclosure, his search was made in presence of the Circle Officer of the police. On search, 03

kg Charas was recovered from his bag. After recovery, the recovered contraband was sealed and on same day, the applicant and the recovered item

were produced before the court concerned and in the presence of court, sample from the contraband, recovered from the possession of the applicant,

was taken and sent to the Forensic Science Laboratory.

The applicant is facing trial. The learned counsel for the applicant submits that applicant is innocent; he is falsely implicated; no independent witness

had been associated by the police; the provisions of Section 50, 52, 52- A, 56 and 57 of the Act, 1985 were not complied with; he has no criminal

history; the trial is going to conclude; he is in custody since 13.04.2019, therefore, in the light of the judgment passed by the Hon'ble Supreme Court in

the case of State of Kerala Vs. Raneef, (2011)1 SCC 784, the applicant may be released on bail.

The learned counsel for the State opposed the bail application and submits that the search was conducted before the Circle Officer of the police

and 03 kg Charas was recovered from the bag of the applicant; in the Notification of the Central Government, Charas is mentioned in the entry of 23

and according to this entry 100 gram is small quantity and 01 kg is commercial quantity; after the recovery, the contraband was sealed and on the

same day, the applicant and the recovered Charas were produced before the court concerned and sample was taken from the contraband, recovered

from the possession of the applicant, in presence of the court; trial is on the verge of the conclusion; however, the learned counsel for the State

concedes that the applicant has no criminal history.

In this matter, the FIR discloses that in spite of an endeavour, no independent witness could be secured. In the case of Makhan Singh vs. State of

Haryana, 2015(4) CCSC 1790, the Hon'ble Apex Court has held that compliance withS ection 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.

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.

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.

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. 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.

Therefore, it is quite clear that an order of bail cannot be granted in an arbitrary or fanciful manner. A ratio decidendi of the judgment of Hon'ble

Apex Court in Anil Kumar Yadav Vs. State (N.C.T.) of Delhi and another, 2018(1) CCSC 117 is that in serious crimes, the mere fact that the

accused is in custody for more than one year, may not be a relevant consideration to release the accused on bail.

In the light of the facts and circumstances of the present case, it cannot be said that mandatory conditions, as mentioned above, 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 applicant- accused on bail at this stage, therefore, the bail application is liable to be rejected. The bail

application is rejected accordingly.

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.