Diwan Giri vs State Of Uttarakhand

Ravindra Maithani, J

Applicant is in judicial custody in Case Crime No. 01 of 2024, under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the Act”), Police Station Pati, District Champawat. He has sought his release on bail.

Heard learned counsel for the parties and perused the record.

According to the FIR, on 01.01.2024, 3.17 Kg. charas was allegedly recovered from the possession of the applicant.

It is a case of the applicant that it is a case of non-compliance of the provisions of the Act; the applicant is suffering from Burger disease; there is no independent witness to alleged recovery. Learned counsel would also argue that the alleged quantity was recovered in pieces and in strips, but 100 grams sample was randomly taken. It is also argued that sample was not taken from each piece or each strip. Therefore, entire recovered article may not be said to be charas. In support of his contention, learned counsel has placed reliance on the principles of law, as laid down by the Hon’ble Supreme Court, in the case of Gaunter Edwin Kircher Vs. State of Goa, Secretariat Panaji, Goa, (1993) 3 SCC 145.

In the case of Gaunter Edwin Kircher (supra), the Hon’ble Supreme Court observed that “before examining the scope of this provision, we shall first consider whether the prosecution has established beyond all reasonable doubt that the accused had in his possession two pieces of Charas weighing 7 gms and 5 gms respectively. As already mentioned only one piece was sent for chemical analysis and PW 1, the Junior Scientific Officer who examined the same found it to contain Charas but it was less than 5 gms. From this report alone it cannot be presumed or inferred that the substance in the other piece weighing 7 gms also contained Charas. It has to be borne in mind that the Act applies to certain narcotic drugs and psychotropic substances and not to all other kinds of intoxicating substances. In any event in the absence of positive proof that both the pieces recovered from the accused contained Charas only, it is not safe to hold that 12 gms of Charas were recovered from the accused. In view of the evidence of PW 1 it must be held that the prosecution has proved positively that Charas weighing about 4.570 gms was recovered from the accused.”

Learned State counsel under instruction would submit that sample was not taken from each piece or each strip. He would submit that 100 gram sample was randomly taken.

Since, only 100 gram sample was taken and in view of the law, as laid down by the Hon’ble Supreme Court, it cannot be said that each sample is the representative sample of the allegedly recovered quantity of the applicant. Therefore, it makes out a case for bail.

Having considered the entirety of facts, this Court is of the view that the applicant deserves to be enlarged on bail.

The bail application is allowed.

Let the applicant be released on bail, on his executing a personal bond and furnishing two reliable sureties, each of the like amount, to the satisfaction of the Court concerned