IMPORTANT POINT
The court established that procedural non-compliance under the NDPS Act can lead to bail being granted, especially when the accused has no prior convictions and has faced prolonged detention.

JUDGMENT :

Rakesh Thapliyal, J.

1. The present applicant is seeking bail in relation to FIR No.114 of 2023, for the offences punishable under Section 8/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “NDPS Act”), Police Station Rudrapur, District Udham Singh Nagar.

2. The brief facts of the case are that on 20.02.2023, the complainant Sub-Inspector Mahesh Kandpal lodged the first information report that when he was on patrolling duty with police party near grocery shop at Bindukhera, owned by the present applicant, after seeing the patrolling party, the people standing near the shop started running. When the complainant Sub-Inspector inquired about this, the applicant accepts the guilt and told that he is carrying contraband (medicine). The alleged contraband (medicine) was admittedly is a commercial quantity.

3. It is submitted by the learned counsel for the applicant that the recovery was planted and the present applicant has been falsely implicated and the only evidence against the present applicant is the confessional statement of the present applicant which is hit by Section 25 of the Evidence Act, as the same cannot be read as against the applicant.

4. It is submitted that there is no public witness and furthermore, there is no compliance of Sections 42 and 50 of the NDPS Act. He has further submitted that the present applicant is languishing in jail since 20.02.2023 and he is not a previous convict.

5. Learned Senior Counsel Mr. D.K. Sharma has placed reliance on the judgement of the Hon’ble Apex Court in the case of Boota Singh and others Vs. State of Haryana reported in 2021 SCC Online SC 324. By placing reliance on the said judgment, he submits that there is no compliance of Section 42 of the NDPS Act, and this itself vitiates the entire proceedings against the present applicant.

6. In reference to this, the learned Senior Counsel further submits that the Investigating Officer in short counter affidavit filed on 18.10.2023, admits this fact that there is no compliance of Section 42 of the NDPS Act, which is reflected from the statement as given in para 4 of the affidavit filed by the Sub-inspector.

7. Mr. Saurabh Pandey, the learned Brief Holder for the State has also not disputed this fact in view of the statement given in para 4 of the short counter affidavit that there is no compliance of Section 42 of the NDPS Act.

8. Though in the affidavit, it is contended that the applicant is not a previous convict but the learned Senior Counsel, Mr. D.K. Sharma, submits to this Court that, in fact, the applicant has no criminal history. It is also submitted that in this case, the chargesheet has already been filed and there are total 14 witnesses but till date only one witness has been examined. No doubt, the alleged contraband (medicine) which is recovered from the present applicant is a commercial quantity, and therefore, at this juncture, the condition as stipulated under Section 47 of the NDPS Act has to be examined. It is admitted by the Investigating Officer in the affidavit that there is no compliance of Section 42 of the NDPS Act, therefore, in view of the judgement relied by the learned Senior Counsel for the applicant, there are reasonable grounds for believing that the applicant is not guilty of such offences.

9. Apart from this, admittedly, as per the statement as given by the learned Senior Counsel for the applicant, the present applicant has no criminal antecedent and till date out of fourteen witnesses, only one witness has been examined, therefore, there is no possibility that the trial will be concluded within a short period and this fact cannot be ignored that the present applicant is in jail since 20.02.2023. Furthermore, in this case, since the investigation has already been concluded and trial is going on, therefore, this Court is of the view that since the applicant is in jail since 20.02.2023, the condition as stipulated under Section 37 of the NDPS Act can be dispe