Virendra Singh Rawat vs State Of Uttarakhand
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       HIGH COURT OF UTTARAKHAND AT NAINITAL

                    First Bail Application No.445 of 2021


Virendra Singh Rawat                                                ........Applicant

                                        Versus

State of Uttarakhand                                               ........Respondent


Present:-
Mr. T.A. Khan, Senior Advocate assisted by Mr. Vinay Bhatt, Advocate for the applicant.
Mr. Lalit Miglani, A.G.A. for the State.



Hon'ble Ravindra Maithani, J.

Applicant Virendra Singh Rawat is in judicial custody in FIR No. 338 of 2020, under Sections 8/20/60 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (for short, "the Act") Police Station Nanakmatta District Udham Singh Nagar. He has sought his release on bail.

2. Heard learned counsel for the parties through video conferencing.

3. According to the case, on 14.12.2020, when the police was on patrolling duty and intercepting vehicles', they spotted a Scooty making suspicious moves. The Scooty was being driven by the applicant. When he was asked as to why he tried to run away, he admitted to have charas with him on the bag which he had kept on his shoulder. Senior officers of the Police were informed and search was conducted in the presence of the Circle Officer of police and it is the case that 1.790 kg. charas was recovered from the applicant.

4. Learned counsel for the applicant would submit that in the instant case, compliance of Sections 42 and 50 of the Act has not been made. It is argued that it was incumbent upon the search party to inform the senior police officer immediately after the search as required under Section 42 of the Act,

which is not done in the instant case. It is also argued that when apprehended, the applicant was not given the option of search either before a Gazetted Officer or a Magistrate. It is also argued that the Senior Police Officers' office is situated in the premises of the station itself and it also vitiates the search.

5. On the other hand, learned State counsel would submit that the provisions of Sections 42 and 50 of the Act are not applicable in the instant case because recovery has not been made from the person of the applicant, instead, it is made from a bag.

6. Insofar as, compliance of Section 42 of the Act in any case is concerned, it is argued that though provisions of Section 42 of the Act are not applicable in the instant case, but still the factum of recovery of charas was informed by the police party to their senior officer, Circle Officer, when the search was made.

7. Insofar as, provisions of Section 50 of the Act are concerned, they are undoubtedly not applicable in the instant case, in view of the law laid down by the Hon'ble Supreme Court in the case of State of Punjab Vs. Baljinder Singh and Another, (2019) 10 SCC 473, because the search has not been made from the person of the applicant, instead, it was made from a bag which the applicant was carrying.

8. Learned counsel for the applicant made reference to the judgment in the case of Boota Singh and others Vs. State of Haryana, (2021) SCC Online SC 324 to argue that compliance of Section 42 of the Act has not been made.

9. This Court restrains to make much discussion on merits at this stage, but suffice it to say that the provisions of Section 42 of the Act comes into play, only when officer conducting search has reason to believe from personal knowledge or information given by any person and taken down in writing that any contraband has been concealed in any building, conveyance or enclosed place, which may give any evidence with regard to commission of any offence under the Act and only thereafter, steps given under Section 42 (1)

(a) to (d) may be taken. In the instant matter, according to the case, police had no prior information. It was a case of sudden recovery. Moreover, the

applicant, according to the case had admitted that he had charas and the senior officer was immediately informed by the police party. No vehicle or enclosed place was searched. It is from the bag, which the applicant was carrying. The recovered quantity is a commercial quantity.

10. Having considered all these factors, this Court is of the view that it is not a fit case for bail and the bail application deserves to be rejected.

11. The bail application is rejected.

(Ravindra Maithani, J.) 28.06.2021 Jitendra