Section 42 of the Narcotics Drugs and Psychotropic Substances Act, 1985 requires that a search under the Act be conducted in the presence of two witnesses and that the person to be searched be given an option to be searched before the search is conducted.

HIGH COURT OF UTTARAKHAND AT NAINITAL

Second Bail Application No. 205 of 2021

Hem Chandra Bhatt

….....Applicant

Versus

State of Uttarakhand

….….Respondent

Present:-

Mr. M.S. Pal, Senior Advocate assisted by Mr. Sachin and Mr.

Manoj Bhatt, Advocates for the applicant.

Mr. Lalit Miglani, A.G.A. for the State.

Hon’ble Ravindra Maithani, J. (Oral)

Applicant-Hem Chandra Bhatt is in judicial

custody in Case Crime No. 46 of 2021, under Sections

8/20/60 of the Narcotics Drugs and Psychotropic

Substances Act, 1985 (“the Act”), Police Station Mukhani,

District Nainital. He has sought his release on bail.

2.

Heard learned counsel for the parties and

perused the record.

3.

This is the second bail application. The first

bail

application

was

dismissed

as

withdrawn

on

20.07.2021.

2

4.

According to the FIR, on 07.02.2021, 2.770 Kg.

charas was recovered from the possession of the

applicant, which he was carrying in a vehicle.

5.

Learned Senior Counsel appearing for the

applicant would submit that it is a case of search of

personal car of the applicant, but there has been total

non compliance of Section 42 of the Act.

6.

Learned State Counsel would submit that it is

a case of sudden recovery. He would submit that as soon

as the car was intercepted, the applicant had disclosed

that he had charas. It is argued that the police party

made their personal search, so as to ensure that none has

any incriminating material and thereafter, search was

made and from the car, charas was recovered.

7.

Learned State Counsel admits that in the

instant case, compliance of Section 42 of Act has not been

made. He would submit that there was no occasion for

compliance of Section 42 of the Act.

8.

Undoubtedly, in the cases of sudden recovery,

there may not be any occasion for compliance of Section

42 of the Act, as held by the Hon’ble Supreme Court in

3

the case of Sorabkhan Gandhkhan Pathan & another vs.

State of Gujrat, (2004) 13 SCC 608.

9.

Instant is not a case of sudden recovery or

chance recovery. The Court is cautious as to the stage of

disposal of bail, but to the extent, it is necessary to

appreciate material, observations are being made with a

caveat that any observation made at this stage shall have

no bearing at any subsequent stage or in any other

proceedings.

10.

It is true that the car driven by the applicant

was intercepted by the police and it was a sudden action,

but then police did not recover charas. When the

applicant told that he had charas, he was deboarded from

the car, he was given an option of search and thereafter,

the car was searched. When according to the police,

charas was recovered. Therefore, though the interception

of the car was a chance but recovery is not chance

recovery. Admittedly, compliance of Section 42 of the Act

has not been made. It makes out a case for bail.

11.

Having considered, this Court is of the view

that it is a case fit for bail and the applicant deserves to

be enlarged on bail.

4

12.

The bail application is allowed.

13.

Let the applicant be released on bail, on his

executing a personal bond and furnishing two reliable

sureties, each of the like amount, to the satisfaction of the

court concerned.

(Ravindra Maithani, J.)

06.01.2023

AK