Uttarakhand High Court
Shankar Singh Kathait vs State Of Uttarakhand on 16 June, 2021
HIGH COURT OF UTTARAKHAND AT NAINITAL
First Bail Application No. 390 of 2021
Shankar Singh Kathait ...Applicant
Versus
State of Uttarakhand ....Respondent
Present:-
Mr. Sanjay Bhatt, Advocates for the applicant.
Mr. Lalit Miglani, A.G.A. for the State of Uttarakhand.
Hon'ble Ravindra Maithani, J.
Applicant Shankar Singh Kathait is in judicial custody in FIR No.
34 of 2020, under Sections 8 and 20 of Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short 'the Act'), Police Station - Pati, District
Champawat. He has sought his release on bail.
2. Heard learned counsel for the parties through video conferencing.
3. According to the case, on 16.12.2020, Police party was on
patrolling duty, when they noticed that a person on a motorcycle suddenly tried
to turn away his motorcycle, when he spotted the Police. But, while doing so,
he fell down from the motorcycle. He was caught by the Police party and asked
as to why he was trying to run away. He confessed that he had charas. Police
gave option of search to him before a Magistrate or Gazzetted officer. In the
presence of a Police gazetted officer, 5 Kg, 710 grams charas was recovered
from him.
4. Learned counsel for the applicant would submit that the case is
much in doubt because compliance of Section 42 and 50 of the Act has not
been made. The Police party, according to the FIR itself, left the Police Station
at 02:10 PM on that date and the place of incident is just 6 Km. from Police
Station, as recorded in the FIR, but, the search was made at 05:25 PM, which is
three hours delayed. It is argued that, in fact, in the premises of Police Station,
there are offices of Sub-Divisional Magistrate, Tehsildar Magistrate and other
revenue officers. The Police party could have brought the applicant before the
Magistrate, which was just six Km. away from the place of incident and got the
search done, but, the Police called their senior officers from 35 Kms. away,
which according to learned counsel is non-compliance of Section 50 of the Act
and vitiates the search. In the same line, learned counsel would argue that in
fact, the moment the applicant revealed that he had charas, the provisions of
the Act comes into play and it was incumbent upon the Police party to follow
the procedure given under Section 42 of the Act because the search was being
made in the vehicle.
5. On the other hand, learned State Counsel would submit that the
recovered charas is commercial quantity; the provision of Section 42 and 50 of
the Act are not applicable in this case because the recovery was made from a
bag before a gazetted officer.
6. This is a stage of bail. Much of the discussion should not be made
on merits at this stage. But, to the extent arguments have been made, the
material may be just referred to. Section 42 of the Act makes provision with
regard to search and seizure when it is intended in any building, conveyance or
place and Section 43 of the Act relates to such action if it is done at a public
place.
7. In the instant case, it is written in the FIR itself that spotting the
Police, the applicant tried to turn away his motorcycle and he fell down. Then,
he was caught. Does it mean that he was not caught on the motorcycle? The
allegedly recovered charas was not taken from any search of the motorcycle.
Instead, it was in a bag. It was not from personal search. It is true that
according to the case, the Police gave an option of search, as required under
Section 50 of the Act to the applicant, but, it does not make any difference. In
case, the contraband is not recovered from personal search, the provision of
Section 50 of the Act does not come into play, as has categorically been held
by the Hon'ble Supreme Court in the case of State of Punjab Vs. Baljinder
Singh and Another, (2019) 10 SCC 473 (paragraph 17 and 18 of the judgment).
8. It is true that the moment, a searching officer comes to know that
an offence under the Act is committed, he should immediately proceed in
accordance with the provisions of the Act. But, here, search was not made
from the person of the applicant. It was not made from any vehicle. It was on a
public place from a bag, which the applicant was holding. These issues may be
further deliberated during trial and a conclusive finding with regard to
applicability may perhaps be recorded. More than 5 Kgs charas was allegedly
recovered from the applicant. Having considered the matter, this Court is of the
view that it is not a case fit for bail and the bail application deserves to be
rejected.
9. The bail application is rejected.
(Ravindra Maithani, J.)
16.06.2021
Ujjwal
