Sandeep Kumar vs State Of Uttarakhand

Vivek Bharti Sharma, J

Applicant Sandeep Kumar, 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/accused 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 Prakash Singh 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.

Learned counsel for the applicant/accused would further submit that the memo of legal right (Annexure no.3 to the Bail Application) 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 for the applicant/accused 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 purpose of Section 50 of NDPS Act.

Learned counsel for the applicant/accused would further submit that the co-accused Prakash Singh has already been granted bail by the Hon’ble Supreme Court and the present accused with similar role is also entitled for bail on the ground of parity.

Per contra, counsel for the State would vehemently oppose the bail application and would submit that it was a chance recovery; that, after the contraband 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.

Counsel for the State 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 more recovery was made from the applicant/accused in the search before the Gazetted Officer. However, he would admit that the co-accused Prakash Singh with similar role has already been granted bail by the Hon’ble Supreme Court.

Having considered the entirety of the facts and without expressing any final opinion on the merits of the case, the applicant /accused is admitted to bail on parity.

Let the appellant/accused be released on bail, on furnishing bail bond with two sureties in the amount of 70,000/- and personal bond of the like amount to the satisfaction of the learned Trial Court.

First Bail Application stands disposed of accordingly.