I N THE HI GH COURT OF UTTARAKHAND AT NAI NI TAL THE HON’BLE SRI JUSTICE ASHISH NAITHANI FI RST BAI L APPLI CATI ON NO. 1489 of 2024 Diwan Singh …Applicant Versus State of Uttarakhand …Respondent Counsel for the Applicant : Mr. M.S. Pal, learned senior counsel assisted by Ms. Medha Pandey, learned counsel.

Counsel for the State : Mr. Rakesh Negi, Brief Holder.

Hon’ble Ashish Naithani, J.

This is the first bail application under Section

439 of the Code of Criminal Procedure, 1973 filed on behalf of the applicant, Diwan Singh, seeking his enlargement on bail in connection with FIR No. 29 of 2023 dated 11.10.2023, registered at Police Station Pati, District Champawat, under Sections 8, 20, and 60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter “NDPS Act”).

2. On 10.10.2023, a police team, while on routine checking duty, allegedly spotted a white Santro car (registration number UK03C-5952) parked near Devidhura. It is alleged that upon seeing the police, two persons seated inside the car fled. On inspecting the vehicle, the police claim to have recovered 1.605 kilograms of charas from a bag kept below the passenger seat, along with two mobile phones and multiple SIM cards.

3. Since the identity of the persons was not known, the FIR was initially lodged against unknown individuals. During the course of the investigation, the vehicle was found to be registered in the name of the applicant, and certain SIM cards recovered from the mobile phones were also found to be registered in his name.

4. On this basis, the applicant was arrayed as an accused. It is an admitted position that the applicant was not arrested on the spot but voluntarily surrendered before the Court of learned Special Judge (NDPS), Champawat on 02.05.2024 and has remained in judicial custody since then.

5. As per the notification S.O. 1055(E) dated 19.10.2001 issued under the NDPS Act, a small quantity of charas is defined as up to 100 grams, while a commercial quantity is 1 kilogram or more. The recovered contraband, weighing 1.605 kilograms, is significantly above the commercial quantity threshold. Section 20 of the NDPS Act states that for offences involving commercial quantity, the punishment extends to a minimum of ten years rigorous imprisonment, which may extend to twenty years, along with a fine.

6. Learned counsel for the applicant submits that the applicant has been falsely implicated in the matter. It is argued that the alleged contraband was not recovered from the person or the conscious possession of the applicant. The entire case is built upon circumstantial links, namely, vehicle ownership and SIM registration.

7. It is further submitted that no identification proceedings were carried out, and the applicant was not identified by any of the officers who allegedly saw two persons fleeing from the car. Moreover, the applicant was not apprehended from the scene, nor is there any direct evidence of his presence at the time of recovery. Learned counsel has further submitted that the FIR is silent as to the specific time when the police team arrived at the alleged spot and when the recovery was made, although it states that the patrol began at 05:02 PM and the FIR was registered at 12:35 AM the next day. This unexplained gap in the timeline casts serious doubt upon the integrity of the prosecution's version.

8. It is further contended that although the recovery memo mentions four separate bundles allegedly containing charas, only one bundle was sent for forensic examination, and no explanation is offered for why the remaining three bundles were not examined or sealed appropriately. Since the samples were not taken from the rest of the bundles, it cannot be said with certainty that the entire recovered material was indeed charas. Since the punishment under the NDPS Act depends upon the weight of the contraband, this fact leaves a void in the prosecution's case.

9. It is also argued that the present case involves joint recovery, and in such circums