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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
R.C.Khulbe, J.
Ravi Kumar - Appellant
Versus
State Of Uttarakhand - Respondent
First Bail Application No. 71 of 2021
Decided On : 08-07-2021
Narcotics Drugs & Psychotropic Substances Act - Bail Application - Sections 42, 50 - Summary of Acts and Sections: The court discussed the compliance of Section 42 and Section 50 of the NDPS Act. It referred to the law laid down by the Apex Court in various cases to determine the applicability of these sections in the present case. The court emphasized the importance of compliance with these sections and the need for immediate action in certain situations.
Fact of the Case:
The accused was apprehended with illegal Charas in his vehicle during routine police checking. The accused claimed false implication and sought bail based on non-compliance with Sections 42 and 50 of the NDPS Act.
Finding of the Court:
The court found that the police party had informed the Magistrate before conducting the search and had also informed their superior officer after the search. It concluded that the applicant did not deserve bail at this stage and dismissed the bail application.
Issues: The issues revolved around the compliance of Sections 42 and 50 of the NDPS Act, the applicability of these sections in the present case, and the entitlement of the accused for bail.
Ratio Decidendi: The court emphasized the importance of immediate action and compliance with the relevant sections of the NDPS Act. It referred to precedents to interpret the applicability of the sections in the present case.
Final Decision: The bail application was dismissed, and any pending application was disposed of.
JUDGMENT
R.C. Khulbe, J. - Applicant-Ravi Kumar is in judicial custody in connection with FIR/Case Crime No.0067 of 2020, u/s 8/20/60 of the Narcotics Drugs & Psychotropic Substances Act, 1985 (hereinafter to be referred as 'the Act') registered at P.S. Dharasu, District Uttarkashi.
2. As per the FIR on 12.12.2020 at about 18:57 hours, S.O. Vinod Prasad Thapliyal along with other police personnel was busy on routine checking of the vehicles; when they reached at Peepalmandi by-pass, the informer informed them that a person was coming from Chiniyalisaur Bazar by a vehicle bearing registration No.UK07-V-5720 towards Uttarkashi; on this information the police personnel apprehended the accused and after taking search, 3.840 Kg. of illegal Charas was recovered from the said vehicle; accordingly, recovery memo was prepared at the spot.
3. It is argued that the accused has been falsely implicated; he is languishing in jail since 12.12.2020; there is no criminal history; as per the recovery memo, the police party had prior information about the vehicle, in spite of that, the police party did not comply with the provisions of Sections 42, 50 of the NDPS Act as well as Section 100 Cr.P.C.; accordingly, the accused is entitled for bail in view of the law laid down by the Apex Court in the case of Buta Singh vs. State of Haryana , (2021) AIR SC 1913; and he further submitted that the police party had sufficient time to record the information but neither they recorded the information nor obtained any warrant from the competent court.
4. Per contra, learned Government Advocate vehemently opposed for bail and argued that the police party did not have sufficient time to record the information as they were on patrolling duty, but after taking search, they have sent the information to their higher authority (Dy.S.P.) within a period of two hours; the contraband article comes within the definition of commercial quantity; hence, the accused is not entitled for bail.
5. Heard learned Counsel for both the parties and perused the entire record.
6. As far as the compliance of Section 50 of NDPS Act is concerned, from a perusal of the recovery memo, it is clear that the contraband article Charas was recovered from the vehicle (Car), thus, there was no need to make compliance of Section 50 of the Act in view of the law laid down by the Apex Court in the case of Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609.
7. As far as the compliance of Section 42 of the Act is concerned, the Apex Court in 'State of Rajasthan v. Jag Raj Singh @ Hansa, (2016) 11 SCC 687 has held that the compliance of Section 42 of the Act is mandatory in such a case where the vehicle is a private one.
8. The Hon'ble Apex Court in the recent case Buta Singh v. State of Haryana (Supra) has clearly held that a private vehicle would not come within the expression of "public place", as explained in Section 43 of the Act.
9. No doubt the law laid down by the Apex Court is binding on the soil of India in view of Article 141 of the Constitution of India. Now, coming to the facts of this case, from a perusal of the recovery memo, it is clear that when the police party was on patrolling duty, they received information from informer about the contraband article being brought by the accused by his vehicle bearing No.UK07-V-5720; when the police party reached at the spot and apprehended the accused, they informed the accused about his right and the accused preferred to be searched before a Magistrate; accordingly, the police party informed the concerned Magistrate, and Mr. Pratap Singh Chauhan, Tehsildar/Magistrate reached at the spot; accordingly, the search was conducted and the above contraband article was recovered from the car of the accused.
10. Learned counsel for the applicant drew the attention of the Court towards Section 42 of the Act and vehemently argued that although, the police party had prior information, but they did not note down the information before taking the search
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