Pushpendra vs State of Uttarakhand

LOK PAL SINGH, J. (ORAL)

Heard learned counsel for the parties.

This bail application has been filed by the applicant for seeking regular bail in FIR/ Case Crime No. 28 of 2017, under Sections 8, 20 of NDPS Act.,

registered at Police Station Mori District Uttarkashi.

On 03.12.2017, First Information Report was lodged against the applicant and one Mr. Ashok Chauhan, alleging therein that, both the accused were

apprehended while they were coming from Mori market and during search of the bags hanged by them 2.350kg. charas was recovered from the

possession of the applicant and 2.50 kg. charas was recovered from the possession of co-accused Mr. Ashok Chauhan.

Learned counsel for the applicant submitted that while arresting the applicant, the provision of Section 50 and Section 52 of N.D.P.S.Act have not

been complied with. He submitted that before making arrest of the applicant, the officer concerned has not informed the applicant about his legal right

to be searched before the Gazetted Officer. Furthermore, applicant has no criminal history. He submitted that applicant has falsely been implicated in

the instant case, which is clear from the fact that alleged recovery has not been made in presence of independent witnesses. In support of his

submission, the learned counsel for the applicant relied on the paragraph 29 & 32 of (2011) 1 SCC 609. Same are quoted hereinbelow:

In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a

safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of

planting or foisting of false cases by the law enforcement 3 searched before a gazetted officer or a Magistrate. We have no hesitation in holding that

in so far as the obligation of the of of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the

provision would render the recovery of the agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be

searched of his right to be authorised officer under sub-section (1) Section 50 illicit article suspect and vitiate the conviction if the same is recorded

only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not

choose to exercise the right provided to him under the said provision 32. We also feel that though Section 50 gives an option to the empowered officer

to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and

creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who

enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily

strengthen the prosecution as well.

Learned counsel for the applicant further submitted that in case, the applicant is granted bail, he will not misuse the same and will furnish the bail

surety as per the satisfaction of this Court. He submitted that applicant is not in a position to influence the witnesses/trial in any manner. He submitted

that on the basis of evidence being relied by the prosecution, the applicant cannot be convicted.

Learned counsel for the State opposed the bail application and submitted that the alleged contraband recovered from the possession of the applicant

is more than commercial quantity. He submitted that there is no reason for the police party to falsely implicate the applicant and invest huge amount in

purchasing the contraband to implicate the applicant. He further submitted that police personnel tried their level best to bring the independent witness,

but nobody came forward and only thereafter the search was made before the Circle Officer who is Gazetted Officer. Therefore, it cannot be said

that arrest of the applicant is in violation of Section 50 of the N.D.P.S. Act. He also submitted that other necessary formalities were also completed as

per the law.

The Hon’ble Apex Court in many of the cases has laid down certain norms for grant of bail.

Relevant paragraphs of such judgment are quoted hereinafter.

(i) In paragraph no.10 of the judgment in the matter of Kanwar Singh Meena Vs. State of Rajasthan & another, (2012) 12 SCC 180, the Hon’ble

Apex Court has held as under:-

Thus, Section 439 of the Code confers very wide powers on the High Court and the Court of Sessions regarding bail. But, while granting bail, the

High Court and the Sessions Court are guided by the same considerations as other courts. That is to say, the gravity of the crime, the character of the

evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating

the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken

into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have

to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the accused. The court must not

undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature

comments are likely to deprive the accused of a fair trial.

Co-accused, namely, Ashok Chauhan has already been granted bail by the Coordinate Bench vide order dated 25.07.2018 and this is a case of

parity.

Considering the submission of learned counsel for the applicant and without expressing any opinion as to final merits of the case, this Court is of the

view that applicant deserves bail at this stage on the ground of parity.

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The bail application is allowed. However, it is made clear that trial Court shall not be influenced in any manner by the observation made in this

order.

Let the applicant be released on bail, on executing personal bond and furnishing two reliable & local sureties, each of like amount, to the

satisfaction of Court concerned.