Prakash Singh vs State Of Uttarakhand

Vivek Bharti Sharma, J

Applicant Prakash Singh, who is in judicial custody in Case Crime/FIR No.46 of 2022, under Sections 8/20/60 of NDPS Act, Police Station Lohaghat, District Champawat, has sought his release on bail.

Heard learned counsel for the parties and perused the material available on file.

Learned counsel for the applicant would submit that two accused persons were arrested with the commercial quantity of Charas; that, as per the FIR the applicant/accused and the co-accused Sandeep Kumar were told about their legal rights and were given option to get themselves searched by the Magistrate or a Gazetted Officer and on the option being chosen by the accused they were searched by the Gazetted Officer i.e. the Circle Officer.

He would further submit that the memo of legal right (Annexure no.1 to the IA No.3 of 2023) would make it amply clear that this option of being searched before the Magistrate or Gazetted Officer was given to both the accused jointly and both of them chose their option to get them searched in presence of the Gazetted Officer.

Learned counsel would further submit that as per the judgment of Hon’ble Supreme Court in the case of “State of Rajasthan Vs. Parmanand and Anr. (2014) 5 SCC 345”, the joint communication of right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50 of NDPS Act.

Per contra, counsel for the State would vehemently oppose the bail application and would submit that it was a chance recovery and the contraband found in the person of the applicant/accused had already been recovered by chance on routine “Naka” checking when they were intercepted; that, after the same had been recovered by chance from them, they were given the option, for possibility of more recovery from their person, to get themselves searched if they want, thereafter, they chose to get themselves searched by a Gazetted Officer but nothing was recovered in their personal search before the Gazetted Officer.

She would further submit that for the sake of argument, even if it is presumed that there was non-compliance of Section 50 of the NDPS, in that case also it is to be noticed that no recovery was made from the applicant/accused in the search before the Gazetted Officer.

She would submit that the trial is underway and out of 10 prosecution witnesses, 04 witnesses have been examined so far and the next date of hearing before the trial court is 08.11.2023.

Having considered the rival submissions of counsel for respective parties, without expressing any opinion about final merits of the case before the Trial Court, in the considered view of this Court, the applicant/accused does not deserve bail at this stage.

The bail application is, accordingly, rejected.

However, the trial court is directed to complete the trial expeditiously, preferably within four months from the date of receipt of copy of this order and for that purpose if the case is needed to be preponed the trial court is at liberty to do so.

Registry is directed to send a copy of this order to the court concerned for information and compliance.