Moin Khan vs State Of Uttarakhand

Ashish Naithani, J

The present bail application has been moved on behalf of the applicant, who is currently in judicial custody in connection with FIR/Case Crime No. 0016 of 2024, registered at Police Station Kotwali Almora, District Almora, under Sections 8, 21, and 60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the N.D.P.S. Act).

Heard Mr. Lalit Sharma, learned counsel for the applicant and Mr. Bhaskar Chandra Joshi, learned A.G.A. for the State of Uttarakhand and perused the record.

It is alleged in the first information report that on 03.03.2024, at about 18:10 p.m., a police party was conducting a routine patrol in the Almora region when they spotted a motorbike, from which 320 grams with wrapper and 317 grams without wrapper of smack were recovered from the possession of the applicant.

Learned counsel for the applicant has argued that the inventory of the contraband was allegedly prepared on the spot, and the FIR number was already mentioned in the inventory report, which raises doubts about the authenticity of the case, suggesting the possibility of fabrication. The applicant’s counsel has also pointed out that there was a violation of Section 50 of the N.D.P.S. Act. According to this provision, the accused must be informed of their right to have the search conducted in the presence of a Magistrate or a Gazetted Officer. The failure to comply with this requirement could render the recovery and subsequent evidence inadmissible.

Learned counsel for the applicant further submits that the applicant has been falsely implicated in the present case; there is no independent witness; applicant has no prior criminal antecedents; the applicant/accused is in judicial custody since 03.03.2024 and if he is enlarged on bail and he will abide by all the conditions as imposed by this Court.

On the other hand, the learned Deputy Advocate General for the State has vehemently opposed the bail application, arguing that the offense committed by the applicant is grave, particularly as the recovered quantity of smack, 320 grams, falls within the commercial quantity category under the N.D.P.S. Act. Learned State Counsel has admitted that the FIR number was mentioned in the inventory report, but clarified that it was annexed later, at the police station, and not at the spot of recovery. The State contends that there is no fabrication of the case and asserts that the recovery of such a large quantity of contraband has significant implications, especially in terms of drug trafficking and substance abuse.

Additionally, learned State Counsel submits that, the search was conducted in the presence of Vimal Prasad, Circle Officer Almora, a Gazetted Officer, indicates that the legal requirements under Section 50 were adhered to.

Upon hearing the arguments of both parties and considering the material on record, the Court finds that compliance with the procedural requirements under the N.D.P.S. Act is of paramount importance. The issue regarding the FIR number being annexed at the police station, instead of being mentioned at the spot, does cast some doubt on the procedural integrity of the recovery process. While this procedural irregularity does not conclusively indicate fabrication, it raises questions about the handling of the contraband.

Furthermore, while the quantity of contraband recovered from the applicant is substantial and falls within the category of commercial quantity under the N.D.P.S. Act, the Court must weigh the severity of the offense against the procedural discrepancies identified in the case. At this stage, the Court refrains from delving into the merits of the case but finds that the applicant has made out a prima facie case for the grant of bail, especially in light of the procedural irregularities raised.

Additionally, a significant concern raised by the applicant is the absence of the FSL (Forensic Science Laboratory) report, which is a crucial piece of evidence to confirm that the substance recovered from the applicant is indeed smack, as alleged in the FIR. The FIR mentions that the contraband was identified as smack based solely on the scent emanating from the packet, which brings into question the reliability and accuracy of this method of identification. The identification of a narcotic substance based solely on its smell by police officers, without any scientific verification, is inherently unreliable and susceptible to error.

In light of these concerns, the Court must take into account the procedural deficiencies and the absence of scientific verification of the contraband’s nature. The Court finds it difficult to overlook these issues, as they could potentially affect the strength of the prosecution’s case against the applicant.

In light of these observations, the bail application is allowed.

The applicant- Moin Khan, is directed to be released on bail upon executing a personal bond and furnishing two reliable sureties, each in the like amount, to the satisfaction of the court concerned.