Uttarakhand High Court
Bharat Ram vs State Of Uttarakhand on 22 August, 2022
HIGH COURT OF UTTARAKHAND AT NAINITAL
First Bail Application No. 318 of 2022
Bharat Ram ........Applicant
Versus
State of Uttarakhand ........Respondent
Present:-
Mr. Lokendra Dobhal and Mr. Neelabh Kumar Bist,
Advocates for the applicant.
Mr. V.K. Jemini, Deputy Advocate General with Ms. Meena
Bisht, Brief Holder for the State.
Hon'ble Ravindra Maithani, J. (Oral)
Applicant Bharat Ram is in judicial custody in
FIR/Case Crime No. 58 of 2021, under Sections 8/20 of the
Narcotic Drugs and Psychotropic Substances, 1985 (for
short, "the Act"), Police Station Ghansali, District Tehri
Garhwal. He has sought his release on bail.
2. Heard learned counsel for the parties and
perused the record.
3. According to the FIR, on 24.12.2021, 1.792 Kg
Charas was recovered from the possession of the applicant,
which he was carrying in a bag.
4. Learned counsel for the applicant would argue
that in the instant case, search was not made as per
provisions of Section 50 of the Act because the Naib
Tehsildar, before whom, search was made is neither a
Gazetted Officer nor a Magistrate. He would submit that in
the instant case, search from the person of the applicant
was also made, therefore, the provisions of Section 50 of the
Act would be applicable. He would refer to the principle of
law, as laid down in the case of State of Rajasthan vs.
Parmanand and another, (2014)5 SCC 345 and S.K. Raju
alias Abdul Haque alias Jagga vs. State of West Bengal,
(2018)9 SCC 708.
5. In the case of Parmanand (supra), the Hon'ble
Court followed the principle of law as laid down in the case
of Dilip and another vs. State of M.P., (2007)1 SCC 450, in
which, the Hon'ble Supreme Court inter alia has held that,
"provisions of Section 50 might not have been required
to be complied with so far as the search of scooter is
concerned, but keeping in view the fact that the person
of [the accused] was also searched, it was obligatory on
the part of [the officers] to comply with the said
provisions."
6. In the case of S.K. Raju (supra), the Hon'ble
Supreme Court in para 20 of the judgment followed the
principle of law, as laid down in the case of Parmanand. In
fact, as stated, in the case of Parmanand, as such the
Hon'ble Supreme Court had followed the principle of law as
laid down in the case of Dalip (supra).
7. Learned counsel for the applicant would also
argue that, in fact, the judgment in the case of State of
Punjab vs. Baljinder Singh and another, (2019)10 SCC 473
has not referred to the judgment in the case of S.K. Raju
(supra) and Parmanand (supra), therefore, the law laid down
in the case of Parmanand (supra) and S.K. Raju (supra) will
have binding effect.
8. On the other hand, learned State counsel would
submit that the recovery was made from the bag and in the
instant case, the provisions of Section 50 of the Act is not
applicable and the forensic report confirmed that the
recovered article was Charas.
9. In fact, as stated, in the case of Parmanand
(supra) and S.K. Raju (supra), the principle of law, as laid
down in the case of Dilip (supra) has been followed. In the
case of Baljinder Singh (supra), the Hon'ble Supreme Court
posed certain questions for determination in para 8 of the
judgment, which are as follows:-
"8. The question that arises in the matter is:
If a person found to be in possession of a vehicle
containing contraband is subjected to personal search,
which may not be in conformity with the requirements
under Section 50 of the Act; but
the search of the vehicle results in recovery of
contraband material, which stands proved independently;
would the accused be entitled to benefit of
acquittal on the ground of non-compliance of Section 50 of
the Act even in respect of material found in the search of
the vehicle?"
10. After discussion law on the subject, the Hon'ble
Supreme Court observed that the law laid down in the case
of Dilip Singh (supra) is not the correct law. In para 17 and
18 of the judgment the Hon'ble Supreme Court discussed as
hereunder:-
"17. In the instant case, the personal search of the
accused did not result in recovery of any contraband. Even if
there was any such recovery, the same could not be relied
upon for want of compliance of the requirements of Section
50 of the Act. But the search of the vehicle and recovery of
contraband pursuant thereto having stood proved, merely
because there was non-compliance of Section 50 of the Act as
far as "personal search" was concerned, no benefit can be
extended so as to invalidate the effect of recovery from the
search of the vehicle. Any such idea would be directly in the
teeth of conclusion (3) as aforesaid.
18. The decision of this Court in Dilip
case [Dilip v. State of M.P., (2007) 1 SCC 450 : (2007) 1 SCC
(Cri) 377] , however, has not adverted to the distinction as
discussed hereinabove and proceeded to confer advantage
upon the accused even in respect of recovery from the
vehicle, on the ground that the requirements of Section 50
relating to personal search were not complied with. In our
view, the decision of this Court in the said judgment in Dilip
case [Dilip v. State of M.P., (2007) 1 SCC 450 : (2007) 1 SCC
(Cri) 377] is not correct and is opposed to the law laid down
by this Court in Baldev Singh [State of Punjab v. Baldev
Singh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080] and other
judgments."
11. Therefore, the law as laid down in the case of
Baljinder (supra) will have binding effect and if, search is
not personal, the compliance of Section 50 of the Act is not
mandatory. If personal search and search from bag or other
article is also done and compliance of Section 50 of the Act
is not made; in such contingencies, according to the law, as
laid down in the case of Baljinder (supra), the recovery to
the extent of personal search would only be vitiated. The
search and the recovery, which is not from the personal
search would not be vitiated. In the instant case, the
recovery is not from personal search.
12. Having considered, this Court is of the view
that it is not a case fit for bail and the bail application
deserves to be rejected.
13. The bail application is rejected.
(Ravindra Maithani, J.)
22.08.2022
Sanjay
