I N THE HI GH COURT OF UTTARAKHAND AT NAI NI TAL Bail Application 1^st No.702 of 2024 Rakesh Tewari ......Applicant Vs.

State of Uttarakhand …..Respondent Mr. Saurav Pandey, learned counsel, holding brief of Mrs. Shruti Joshi, learned counsel for the applicant.

Mr. S.C. Dumka, learned AGA, for the State of Uttarakhand.

Hon’ble Ashish Naithani, J ( Oral)

The present bail application has been moved on behalf of the applicant, Rakesh Tewari, son of Mahesh Chandra Tewari, aged 39 years, resident of Village Jalnaneel Pahari, Post Office Paharpani, Mukteshwar, District Nainital. The applicant is presently in judicial custody in connection with FIR No. 12 of 2024, registered at Police Station Lamgara, District Almora, under Sections 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

2. The case pertains to the alleged recovery of 1 kg 181 grams of Charas. As per Section 2(iii)(a) of the NDPS Act, Charas is defined as "the separated resin, in whatsoever form, whether crude or purified, obtained from the Cannabis plant," and the quantity recovered exceeds the threshold for commercial quantity, which is defined under Section 2(viia) and Section 2(xxiii)(a) of the NDPS Act. The relevant notification specifies that the commercial quantity for Charas is 1 kg.

3. The learned counsel for the applicant submits that the applicant has been falsely implicated in the present case. It is contended that the search and seizure were conducted in violation of the mandatory provisions under Section 42 and 50 of the NDPS Act, as no independent witness was secured during the recovery. It is further argued that there are inconsistencies in the state’s version, including discrepancies in the movement of the police vehicle at the time of the incident, which cast doubt on the credibility of the recovery process.

4. The learned counsel for the applicant also draws the court’s attention to the applicant’s medical condition, submitting that he is suffering from diabetes, hypertension, and a lung infection, which require continuous medical supervision. It is submitted that the jail authorities lack the necessary facilities to provide the applicant with adequate medical care. The applicant further contends that he has no prior criminal history and is willing to abide by any conditions that may be imposed by the Court in the event of bail being granted.

5. On the other hand, the learned Additional Government Advocate has vehemently opposed the bail application, contending that the recovery of 1 kg 181 grams of Charas falls under the category of commercial quantity. Therefore, the rigors of Section 37 of the NDPS Act apply, which impose stringent conditions for the grant of bail. It is argued that the twin conditions under Section 37 of the NDPS Act—first, that the accused must establish a prima facie case of not being guilty of the alleged offence, and second, that he is not likely to commit a similar offence if released on bail—are not satisfied in the present case.

6. The learned AGA further submits that the FSL report confirms that the seized contraband is Charas. It is argued that prima facie, the applicant was in conscious possession of the contraband, and the state has collected sufficient evidence to establish the applicant’s involvement. Additionally, the state apprehended that if the applicant is released on bail, he may influence witnesses and is likely to engage in similar activities.

7. Having given due consideration to the submissions made by both parties and perused the case record, it is evident that the recovered contraband falls under the category of commercial quantity. The conditions under Section 37 of the NDPS Act, which impose strict limitations on the grant of bail, must therefore be satisfied.

8. In the present case, the FSL report confirms that the seized substance is Charas. Further, the state has placed on record prima facie material indicating the applicant’s conscious possession of the contraband. The punishment prescribe