Uttarakhand High Court
CRLA/438/2021 on 13 October, 2022
Office Notes, reports,
orders or proceedings
SL.
Date or directions and COURT'S OR JUDGES'S ORDERS
No
Registrar's order with
Signatures
(Bail Appl. No.01 of 2022)
In
CRLA No.438 of 2021
Hon'ble Sharad Kumar Sharma, J.
Mr. Ram Singh Sammal, Advocate for the
applicant/appellant.
Mr. Atul Kumar Shah, Deputy Advocate
General assisted by Mrs. Mamta Joshi, Brief Holder
for the State of Uttarakhand.
This is a criminal appeal preferred against the
judgment of conviction, for the involvement of the
applicant-convict, in an offence under Sections 8/
20/60 of N.D.P.S. Act, which was registered against
him by way of FIR No.259 of 2019, at Thana
Kathgodam, District Nainital.
The prosecution case is that on an
apprehension of the present applicant by the Sub
Inspector Diwan Singh and other constables, on
25.12.2019, a recovery of 1 kg 400 gram of charas
was made from the scooty on which he was ridding
bearing Registration No.UK04 AB 2744. The trial
was conducted and ultimately a judgment of
conviction has been rendered, whereby the
applicant has been convicted to undergo ten years
of rigorous imprisonment and a fine of
Rs.1,00,000/- has been imposed upon him.
There are two fold arguments of learned
counsel for the applicant while pressing his bail
application:-
i. That the provisions contained under
Section 50 of the N.D.P.S. Act was not
complied with.
ii. In answer to the said argument, the
learned Government Advocate has
submitted that since the recovery was
made from the scooty, the provisions of
Section 50 of the N.D.P.S. Act, would not
come into play, which was an aspect
already considered by the learned trial
court while rendering the judgment of
conviction.
So far as the argument relating to Section 57
of the N.D.P.S. Act and its non compliance is
concerned, the learned Government Advocate has
argued that if the recovery memo is taken into
consideration and the observations, which has been
made in the recovery memo of 25.12.2019 in fact
while preparing the recovery memo the information
was given according to the details supplied by the
applicant.
But the argument of learned counsel for the
applicant is that the story of the prosecution
pertaining to the recovery and the manner in which
the contraband was kept in the maal khana. It is
submitted that if the observations made in para 37
of the impugned judgment is taken into
consideration out of the total recovery of 1kg 400
gram of the contraband is considered, there was
reduction in the weight by about 215 gram, which is
disproportionate and the said recovery itself creates
a doubt about the actual recovery, which has been
made from the present applicant.
Learned counsel for the applicant/appellant
had further referred to the two orders passed by the
Division Benches of this Court in Criminal Appeal
No. 40 of 2022 Mukesh Chandra Joshi vs. State of
Uttarakhand and in Criminal Appeal No.184 of
2018 Nandan Singh Negi vs. State of Uttarakhand
where the contraband having being recovered since
being beyond the commercial quantity of about 3
kg 500 grams and 4 kg 100 gram, the Division
Bench, after considering the argument extended by
the counsel for the applicant in the light of the non
compliance of the provisions contained under the
N.D.P.S. Act has granted bail to the applicant and
that the applicant was also on bail during the
pendency of trial and he has never misused the
same.
In one of the judgment rendered on
11.10.2022 the Court has considered, with regards
to the impact of non compliance of Section 52 and
57 of the N.D.P.S. Act, but while considering the
implications of the chemical examination report
received from the FSL Laboratory, wherein it was
proved that the contraband which was recovered
was a prohibited article, which was being found to
be carried by the applicant therein had granted bail.
In the instant case so far as the reduction of
the quantity of the contraband recovered by 215
grams itself it creates a doubt with regards to the
prosecution story because the said disproportionate
reduction in the amount of contraband recovered
creates a doubt though still issue of Section 50 and
57 of the N.D.P.S. Act is to be addressed upon its
own merits when the appeal is heard by this Court.
Considering the aforesaid aspect and also
considering the fact that the applicant is languishing
in jail since 18.11.2021 he is directed to be released
on bail subject to furnishing of his personal bond
and two local sureties of the like amount to the
satisfaction of the learned Sessions Judge but
however the release of the applicant would be
subject to the condition of depositing 50% of the
penalty amount as imposed by the impugned
judgment of 18.11.2021.
Bail Application No.01 of 2022 stands
disposed of.
(Sharad Kumar Sharma, J.)
13.10.2022
Arti
