Momin Alias Bona vs State Of Uttarakhand

Ravindra Maithani, J

Applicant Momin Alias Bona is in judicial custody in FIR No.0361 of 2022, under Section 8/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the Act”), Police Station Kotwali Roorkee, District Haridwar. He has sought his release on bail.

Heard learned counsel for the applicant and perused the record.

According to the FIR, on 29.04.2022, while on patrolling duty, the police signalled a vehicle to stop. It is the applicant who was riding the motorcycle. When questioned, the FIR states that the applicant disclosed that he was carrying narcotic substances along with the co-accused. Subsequently, narcotic substances in commercial quantity were recovered from the bag, which the applicant was carrying.

Learned Senior Counsel for the applicant would submit that it is a case of non-compliance of Sections 42 and 50 of the Act. He would argue that after questioning, the applicant and the co-accused had allegedly taken the injections in their hands revealing that they had the injections. It is argued that from this stage, the provision of Section 50 of the Act becomes applicable, but, no such option was given to the applicant. It is also argued that a conveyance was intercepted, therefore, compliance of Section 42 of the Act was necessary. It is further argued that witnesses have been examined at trial and it has been stated by them that there is no independent witness; the police was not carrying any torch; there was no entry of the police party leaving the police station.

Learned State Counsel would submit that it is a case of recovery of commercial quantity of narcotic substances. In the instant case, provisions of Section 42 of the Act are not applicable because the recovery has been made from a public place. It is also argued that the provisions of Section 50 of the Act would not come into play because the recovery has been made from a bag, which the applicant was carrying.

It is a stage of bail. Much of the discussion is not expected of. Arguments are being appreciated with the caveat that any observation made in this order shall have no bearing at any subsequent stage of the trial, or in any other proceeding.

Section 42 of the Act would come into play only if the other conditions of that Section of the Act are fulfilled, and when search is made of any building, conveyance or place. In the instant case, search was not made of any conveyance. The motorcycle was signalled to stop, but it was not searched, as such.

It is true that, according to the FIR, the applicant and the co-accused had shown the injections to the police, but, the recovery was made from a bag. It excludes the application of the provisions of Section 50 of the Act.

Having considered the entirety of facts, this Court is of the view that it is not a case fit for bail. Accordingly, the bail application deserves to be rejected.

The bail application is rejected.