JUDGMENT

Jyotsna Rewal Dua, J. - Petitioner has been linked with recovery of 3541 number of intoxicating capsules containing psychotropic substance Tramadol and therefore, is an accused in FIR No. 50/2020 dated 16.4.2020 registered under Sections 21 and 29 of Narcotic Drugs & Psychotropic Substance Act (in short NDPS Act) at Police Station, Paonta Sahib, District Sirmour.

2. Instant petition for bail under Section 439 of Code of Criminal Procedure has been preferred on following grounds:

a) Petitioner is not involved with the recovery of intoxicating capsules.

b) Provisions of Section 42 of NDPS Act were not complied with.

c) Investigating Officer and the complainant in the FIR in question was the same person.

The later two grounds though have not been taken in the pleadings, however, they were raised by learned Counsel for the petitioner during hearing of the case.

3. Facts: The prosecution case is that:-

3(i) On 16.4.2020 a police party comprising of HC Arun Kumar, C. Vipin, PC Om Parkash along with C. Dinesh was on patrolling duty vide Rapat No. 38 in the area under jurisdiction of Police Station, Paonta Sahib. At around 6:15 P.M., while the patrolling party was at Vishwa Karma chowk, HC Arun Kumar received a secret but reliable information that one Sanjay Kumar (bail petitioner) is involved in illegal sale of intoxicating capsules and on his demand, one Salman Khan was bringing huge quantity of these capsules from Mirzapur, Uttrakhand in the cabin of truck No. HP 17C-0903. HC Arun Kumar was further informed that the truck was about to enter Paonta Sahib border and its search at that moment itself can result into recovery of large quantity of intoxicating capsules.

3(ii) HC Arun Kumar reduced the above information in writing in accordance with the provisions of Section 42(2) of NDPS Act. The written information so recorded was sent by HC Arun Kumar to Sub Divisional Police Officer, Police Station, Paonta Sahib through C. Vipin. Whereafter HC Arun Kumar along with other officials of patrolling party reached Yamuna barrier. HC Krishan Singh Bhandari, who was discharging his duties at barrier was also involved in the raiding party alongwith Dr. Himanshu Kaushish and Pradeep Kumar- officials of Health department deployed at Yamuna barrier on account of COVID-19 pandemic duty.

3(iii) The raiding party kept watch for the afore numbered truck. At around 6:38 P.M., the truck in question reached Yamuna barrier. It was signaled to stop by HC Krishan Singh Bhandari. The truck driver on inquiry made by HC Arun Kumar disclosed his name as Salman s/o Sabir Ali r/o Paonta Sahib. HC Arun Kumar expressed the intention of the raiding pary for carrying out the search of the truck and in that process gave their own search to Salman. No incriminating article was recovered during search of the officials/members of the raiding party. Cabin of the truck was thereafter searched in accordance with law. During the search, two transparent polythene bags were found underneath a blanket kept on the cleaner seat. One polythene contained five boxes of Pyeevon Spas Plus. Each box had 30 strips of 8 capsules each. Total 1200 intoxicating capsules were recovered from five boxes of Pyeevon Spas Plus. The other polythene contained 2341 loose capsules of PYN SPAS PLUS. In all 1200+2341=3541 intoxicating capsules were recovered from the truck's cabin. The procedure contemplated in law was followed during search and seizure.

3(iv) Suspecting that Salman might be carrying some contraband on his person, therefore, his personal search was also considered necessary by the raiding party. Provisions of Section 50 of the NDPS Act were complied, pursuant to which Salman agreed for his personal search in presence of a gazetted officer. The Sub Divisional Police Officer, Police Station Paonta Sahib was, therefore, requested to come to the spot.

3(v) All this while, the mobile phone of Salman was showing repeated calls received from one Sanjay. This tallied with the informa