Prateek Agarwal ....... ... vs State Of Uttarakhand
2021 Latest Caselaw 1159 UK

     IN THE HIGH COURT OF UTTARAKHAND AT
                   NAINITAL

        First Bail Application No.121 of 2021
                   (U/s 439 Cr.P.C.)

Prateek Agarwal                              ....... Applicant (in jail)

                               Versus

State of Uttarakhand                                 ... Respondents

Present:-
     Mr. Devesh Upreti, learned counsel for the applicant.
     Mr. T.C. Aggarwal, learned Dy. A.G. for the State.


Hon'ble R.C. Khulbe, J.

The accused - Prateek Agarwal @ Minku has sought his release on bail in connection with Case Crime/FIR No.176 of 2020, u/s 8/20 of the N.D.P.S. Act, 1985, registered at P.S. / Kotwali Bageshwar, District- Bageshwar.

2. Heard learned counsel for the parties.

3. As per FIR, on 01.11.2020 Sub-inspector Police along with police team were on patrolling duty. S.I. Deepak Singh and another constable deputed in SOG Cyber Cell, Bageshwar informed that we should check the vehicles. In the meantime, the informer informed the police that some persons are carrying contraband article in TUV300 vehicle bearing no. U.P. 25 BV 3198. The police party detained the persons. The accused is one of them. He disclosed that he was carrying charas. As per recovery memo, 519.8 gram charas from Bachhu Singh, 570 gram charas from William Rodrick Lee, 607.3 gram charas from Rajat Gangwar, 543.8 gram charas from Bali Mohammad and 1060.6 gram charas was recovered from the bag of present accused Prateek Agarwal @ Minku.

4. It is argued by learned counsel for the accused that in the present matter, although as per the recovery memo, 1060.6 gram charas was recovered from the bag of the present accused but, at the same time, the personal search was also conducted by the arresting party. Accordingly, Section 50 of the N.D.P.S. Act will be applicable. But, in the present matter, the police party did not comply the provisions of Section 50 N.D.P.S. Act, accordingly, he is entitled for bail.

5. Learned counsel for the accused placed reliance on Vijaysingh Chandubhai Jadeja Vs. State of Gujarat (2011) 1 SCC 609, Dr. Shah Faesal and Other Vs. Union of India and Another (2020) 4 SCC 1, S.K. Raju @ Abdul Haque @ Jagga Vs. State of West Bengal (2018) 9 SCC 708 and fairly submitted that in the present matter the police party conducted the personal search of the accused also but the police party did not comply the provisions of section 50 of the N.D.P.S. Act. He is ready to furnish the surety; and, he may be granted bail.

6. Per contra, learned counsel for the State opposed for bail.

7. As per the recovery memo, 1060.6 gram charas was recovered from the bag of the present accused and from the personal search, no contraband article was recovered.

8. The Hon'ble Apex Court in S.K. Raju's case (supra) held that where search and seizure is conducted in public place besides bag of the accused being searched, search of person of the accused was also conducted, which resulted in recovery of cash from his trouser, bag, the contraband article was recovered

from the bag carried by accused, compliance with Section 50 of the N.D.P.S. Act becomes mandatory.

9. In State of Punjab Vs. Baldev Singh (1999) 6 SCC 172, the Constitution Bench of the Apex Court clearly held that Section 50 of the N.D.P.S. Act would come into play only if search of a person is distinguished from search of any premises etc. However, if, the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on the completion of that search, a contraband article under the N.D.P.S. Act is also recovered, the provisions of Section 50 of the N.D.P.S. Act are not attracted.

10. From the above, it is clear that if the contraband article is recovered from the bag, car and scooty, Section 50 of the N.D.P.S. Act is not applicable. Although the Hon'ble Apex Court in S.K. Raju's case (supra) held that if a personal search is conducted besides bag of accused being carried. In that situation, Section 50 will be applicable.

11. The above judgment was pronounced on September 5, 2018. While the Hon'ble Apex Court in the State of Punjab Vs. Baljinder Singh and Anr.(2019) 10 SCC 473 held that mandate of Section 50 is confined to "personal search" and not to search of vehicle, container or premises. In that case, the contraband article was recovered from the vehicle driven by the accused. The personal search of the accused was also conducted but no such contraband article was recovered from the personal search. The Hon'ble Apex

Court held that although the personal search was conducted but no compliance was made as envisaged under Section 50 of the N.D.P.S. Act but there is recovery from the bag. The Hon'ble Apex Court held that it would not invalidate search and recovery from the vehicle. The Hon'ble Apex Court while hearing the above matter, State of Punjab Vs. Vijaysingh Chandubhai Jadeja case (supra) was also discussed. The said judgment was pronounced on October 15, 2019.

12. In the present matter, admittedly, the contraband article was recovered from the bag. Although the personal search was also conducted but no contraband article was recovered from the personal search. Accordingly, in the matter of personal search, Section 50 is not applicable. The contraband article recovered from the bag of the present accused definitely comes within the definition of commercial quantity, accordingly, looking to the gravity of the offence, it is not a fit case for bail at this stage.

13. Accordingly, the present bail application is dismissed.

14. Pending application,if any, stands disposed of.

(R.C. Khulbe, J.) 25.03.2021 Sukhbant