Uttarakhand High Court
Ravi Kumar vs State Of Uttarakhand on 13 May, 2022
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Second Bail Application No.235 of 2021
Ravi Kumar ..... Applicant
Versus
State of Uttarakhand ..... Respondent
Mr. Lokendra Dobhal, learned counsel for the applicant.
Mr. V.S. Rathore, learned A.G.A. for the State.
Hon'ble R.C. Khulbe, J.
This is the second bail application moved on
behalf of the accused-Ravi Kumar, who is in judicial
custody in connection with FIR/Case Crime No.0067 of
2020, u/s 8/20/60 of the Narcotics Drugs &
Psychotropic Substances Act, 1985 (hereinafter to be
referred as 'the N.D.P.S. Act') registered at P.S. Dharasu,
District Uttarkashi.
2. The first bail application has been dismissed by
this Court on merits vide order dated 08.07.2021.
3. As per the FIR on 12.12.2020 at about 18:57
hours, S.O. Vinod Prasad Thapliyal along with other
police personnel was busy on routine checking of the
vehicles; when they reached at Peepalmandi by-pass, the
informer informed them that a person was coming from
Chiniyalisaur Bazar by a vehicle bearing registration
No.UK07-V-5720 towards Uttarkashi; on this information
the police personnel apprehended the accused and after
taking search, 3.840 Kg. of illegal Charas was recovered
from the said vehicle; accordingly, recovery memo was
prepared at the spot.
4. It is argued that the accused has been falsely
implicated; he is languishing in jail since 12.12.2020; the
police party did not comply with the provisions of Section
42 of the N.D.P.S. Act; neither they written the
information received from the informer nor sent any
information to the higher officer. Accordingly, the accused
is entitled for bail.
5. Per contra, learned counsel for the State
opposed for bail.
6. Learned counsel for the applicant relied upon
the judgment of Hon'ble Apex Court in Criminal Appeal
No.1051 of 2009, Rajender Singh Vs. State of Haryana.
7. It is true that as per the intension of the
Section of 42 of N.D.P.S. Act, it was the duty of the
concerned Police Officer to note down the information
and it was also the duty of concerned Police Officer to
inform the higher officer, accordingly.
8. As regard to the compliance of Section 42 of
the N.D.P.S. Act is concerned, the Hon'ble Apex Court in
the case of State of Rajasthan Vs. Jagraj Singh @
Hansa report in (2016) 11 of SCC 687 has held that the
compliance of Section 42 of NDPS Act is mandatory in
nature.
9. From a perusal of the FIR, it is clear that on
12.12.2020, 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 No.UK07-V-5720; when the police party reached
at the spot and apprehended the accused, they informed
the accused about his right as envisaged under Section
50 of the NDPS Act and informed the concerned
Magistrate; accordingly, on the information Mr. Pratap
Singh Chauhan, Tehsildar/Magistrate reached at the
spot; accordingly, the search was conducted and the
above contraband article was recovered from the car of
the accused.
10. The Hon'ble Apex Court in the case of 'Buta
Singh vs. State of Haryana' AIR 2021 SC 1913 has held
that a private vehicle would not come within the
expression of "public place", as explained in Section 43 of
the Act.
11. The Constitutional Bench of the Hon'ble Apex
Court in 'Karnail Singh vs. State of Haryana' (2009) 8
SCC 539, has held that if the information was received by
the police when they were not in the police station, but
while they were on the move either on patrolling duty or
otherwise, either by mobile phone, or other means, and
the information calls for 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 them, in
such a situation, the police station could take action as
per clauses (a) to (d) of section 42(1) and thereafter, as
soon as it is practical, record the information in writing
and forthwith inform the same to the official superior.
12. In the present matter, the police party was on
patrolling duty, they received information on the way;
there was no occasion to note down the information as
received from the informer. As regard to the submission
of information to the higher authority, is concerned, they
informed the Tehsildar/Magistrate immediately, who
reached at the spot in whose presence search was
conducted; the contraband article definitely comes within
the definition of commercial quantity. As per the
information given by the learned counsel for the accused
the prosecution has already adduced all the evidence.
13. Looking to the entire facts and circumstances
of case, the applicant does not deserve bail at this stage.
Accordingly, the bail application is dismissed.
14. Pending application, if any, stands disposed of.
(R.C. Khulbe, J.)
13.05.2022
BS
