Advocates:
['RAMJI SHRIVASTAVA', '', 'SAGAR KOTHARI', 'M S Dhapola', 'NANDAN ARYA', 'G A']

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

First Bail Application No.2247 of 2020

Lokesh Kumar

….. Applicant

Versus

State of Uttarakhand

….. Respondent

Mr. Nandan Arya, learned counsel for the applicant.

Ms. Manisha Rana Singh, learned A.G.A. along with Ms. Sonika

Khulbe, learned B.H. for the State.

Hon’ble R.C. Khulbe, J.

Accused–Lokesh Kumar has sought his release

on bail in connection with Case Crime/FIR No.0061 of

2020 u/s 8/22 of the NDPS Act, registered at P.S.

Clement Town, District Dehradun.

2.

It is argued that the accused has been falsely

implicated; he is languishing in jail since 18.09.2020; as

per the recovery memo, the police party had prior

information about the vehicle (motorcycle) bearing

registration No.UK07-DP-1962, in spite of that, the police

party did not comply with the provision of Section 42 of

the Act as also Section 100(4) of the Cr.P.C; there is no

independent witness of the recovery; further, 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; accordingly, the

accused is entitled for bail in view of the law laid down by

the Apex Court in the case of ‘Buta Singh v. State of

Haryana’ AIR 2021 S.C. 1913.

3.

Per contra, learned counsel for the State

vehemently opposed for bail and argued that the police

party did not have sufficient time to record information as

they were on patrolling duty; the police party informed

the C.O.; the contraband article comes within the

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definition of commercial quantity, accordingly, the

accused is not entitled for bail.

4.

Heard learned counsel for both the parties and

perused the entire documents on record.

5.

In so far as compliance of Section 42 of the

NDPS Act is concerned, the Hon’ble Apex Court in the

case of “State of Rajasthan v. Jag Raj Singh” (2016) 11

SCC 687 has held that the compliance of Section 42 of

the Act is mandatory in nature in such a case where the

vehicle is a private one.

6.

The Hon’ble Apex Court in a recent case Buta

Singh v. State of Haryana (Supra) has clearly held out

that a private vehicle would not come within the

expression “public place”, as per explanation given to

Section 43 of the Act.

7.

It is true that the law laid down by the Apex

Court is binding on the soil of India as per Article 141 of

the Constitution. Now, coming to the facts of the instant

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 UK07-DP-1962. The police party reached at the

spot and apprehended the accused; they informed the

accused about his legal rights as envisaged under the

Act. Thereafter, S.I. Vikas Rawat informed the C.O. Mr.

Ankush Mishra through his telephone. Accordingly, the

C.O. reached at the spot. The search was conducted and

the said contraband article was recovered from the bag of

the accused.

8.

The learned counsel for the applicant drew

attention of this Court towards Section 42 of the Act and

argued that although, the police party had prior

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information, in spite of that, they did not note down the

information before taking search nor obtained any search

warrant.

9.

The Constitution Bench of the Hon’ble Apex

Court in State of Haryana v. Jarnail Singh (2009) 8 SCC

539, has held that if the information was received when

the officer was not in the police station but he was on the

move, either on patrolling duty or otherwise, either by

mobile phone, or other means, and the information calls

for an immediate action and any delay would have

resulted in the goods or evidence being removed or

destroyed, it would not be feasible or practical to take

down in writing the information given to him, in suc