Prabhat Singh Bisht vs State Of Uttarakhand
2022 Latest Caselaw 2799 UK

HIGH COURT OF UTTARAKHAND AT NAINITAL

        First Bail Application No. 1786 of 2021

Prabhat Singh Bisht                    ........Applicant

                           Versus

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

Present:-
      Mr. Vijay Bhatt, Advocate for the applicant.
      Mr. S.S. Adhikari, Deputy Advocate General along with Mr.
      Balvinder Singh, Brief Holder for the State.

                            With

        Second Bail Application No. 184 of 2021

Pradeep Singh Fartiyal                       ........Applicant

                           Versus

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

Present:-
      Mr. B.M. Pingal, Advocate for the applicant.
      Mr. S.S. Adhikari, Deputy Advocate General along with Mr.
      Balvinder Singh, Brief Holder for the State.

                            With

        First Bail Application No. 2922 of 2021

Piyush Khadayat                              ........Applicant

                           Versus

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

Present:-
      Mr. Deep Prakash Bhatt, Advocate for the applicant.
      Mr. S.S. Adhikari, Deputy Advocate General along with Mr.
      Balvinder Singh, Brief Holder for the State.
                                2




                            With

          First Bail Application No. 36 of 2022

Deepak Pandey                                ........Applicant

                           Versus

State of Uttarakhand                       ........Respondent
Present:-
      Mr. M.S. Pal, Senior Advocate assisted by Mr. Vikramditya
      Shah, Advocate for the applicant.
      Mr. S.S. Adhikari, Deputy Advocate General along with Mr.
      Balvinder Singh, Brief Holder for the State.



Hon'ble Ravindra Maithani, J. (Oral)

Since all these bail applications arise from the

same FIR, they are being decided by this common order.

2. Applicants-Prabhat Singh Bisht, Piyush

Khadayat & Deepak Pandey are in judicial custody in

FIR/Case Crime No. 190 of 2021, under Sections

8/20/60 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 ("the Act"), Police Station Kichha,

District Udham Singh Nagar. Applicant-Pradeep Singh

Fartiyal is in judicial custody in FIR/Case Crime No. 190

of 2021, under Sections 29 read with Section 8/20 of the

Act, Police Station Kichha, District Udham Singh Nagar.

They have sought their release on bail.

3. According to the FIR, on 12.06.2021 two cars

were intercepted. One was Honda Amaze driven by

co-accused Vipul Shaila, in which applicant-Piyush

Khadayat was co-passenger. Another car was Wagon R

being driven by applicant-Prabhat Singh Bisht and in it

Deepak Pandey was co-passenger. The applicants at the

time of interception revealed that they had charas. They

were told their rights to be searched before a Magistrate

or Gazetted Officer. Circle Officer, Police reached at the

spot. Thereafter, when the search was made, from Honda

Amaze Car 1.094 Kg Charas and from Wagon R Car

6.914 Kg Charas was recovered. The applicants were

arrested.

4. Learned counsel for the applicant-Prabhat

Singh Bisht would submit that, in the instant case

compliance of Section 50 of the Act has not been made,

which is mandatory. It is submitted that the option to be

searched before Magistrate or Gazetted Officer was joint,

which is not an option in the eye of law, in view of the law

laid down by the Hon'ble Supreme Court in the case of

State of Rajasthan vs. Parmanand & another; (2014) 5

SCC 345. In the case of Paramanad (Supra), in para 17,

the Hon'ble Supreme Court inter alia observed "the

communication of this right has to be clear,

unambiguous and individual". Further the Court

observed "We are, therefore, of the view that the

accused must be individually informed that under

Section 50(1) of the NDPS Act, he has a right to be

searched before the nearest gazetted officer or before

the nearest Magistrate.

5. On behalf of the applicant-Prabhat Singh Bisht,

it is argued that in the instant case, the compliance of

Section 42 (2) of the Act has not been made. There is no

independent witness. There is no chance recovery. He has

no criminal history. Hence, it is a case fit for bail.

6. Learned Senior Counsel appearing for the

applicant-Deepak Pandey would reiterate the arguments

as made on behalf of the applicant-Prabhat Singh Bisht.

He would submit that in the instant case, the

fundamental rights and statutory rights of the applicants

have been influenced. Despite prior information, no

arrangements were made to secure the presence of

Gazetted Officer or Magistrate, when cars were

intercepted. Section 50 of the Act has been violated.

Hence, it is a case fit for bail.

7. Learned counsel appearing for the applicant-

Piyush Khadayat would argue that the applicant was a

co-passenger. Nothing was recovered from him. He was

going to meet his brother. His call details have not been

examined. Hence, it is a case fit for bail.

8. On behalf of the applicant-Pradeep Singh

Fartiyal, it is submitted that there is no evidence against

him except confession of the co-accused, which is not

legally admissible evidence.

9. On the other hand, learned State Counsel

would submit that when the cars were intercepted, the

applicants were occupants of the car; commercial

quantity of charas was recovered from each of the cars. It

is argued that the search was made in the presence of

Circle Officer, who is a Gazetted Officer. From the

possession of the applicants, commercial quantity of the

charas was found. Hence, it is not a case fit for bail.

10. With reference to applicant-Pradeep Singh

Fartiyal, learned State Counsel would submit that first

bail application of the applicant has already been rejected

on merits. This is a second bail application and no new

ground has been made out, which may entitle him for

bail.

11. At this, learned counsel for the applicant-

Pradeep Singh Fartiyal would submit that the prosecution

did not have the certificate under Section 65 (B) of the

Indian Evidence Act, 1872 to prove the call details and

applicant-Pradeep Singh Fartiyal has no criminal history.

12. In so far as compliance of Section 50 of the Act

is concerned, it is to be done in case of personal search

not such it is other than personal. Reference has been

made on the judgment of State of Rajasthan vs.

Parmanand & another (supra), it is true that as and when

the compliance of Section 50 of the Act is to be made, it

has to be individual information givenh each of the

arrestee. It should not be joined. It should be clear,

unambiguous and individual. The question is whether

compliance of Section 50 of the Act is required in the

instant case?

13. It is a stage of bail, much of the discussion is

not expected of. Learned counsel appearing for the

applicant-Prabhat Singh Bisht would submit that in the

instant case, apart from car, personal search has also

been done. This Court has interpreted the application of

Section 50 of the Act, keeping in view of the judgment in

the case of Parmanad (supra), S.K. Raju alias Abdul

Haque alias Jagga Vs. State of West Bengal, (2018) 9 SCC

708, Dilip and another vs. State of M.P., (2007) 1 SCC

450 and State of Punjab Vs. Baljinder Singh and another

(2019) 10 SCC 473.

14. In the First Bail Application No. 318 of 2022,

Bharat Ram Vs. State of Uttarakhand, this Court has

observed:

" 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. "

15. In the instant case, although the search of the

car and person has also be done. Therefore, in view of the

judgment in the case of Baljinder (supra), in the case of

non-compliance of Section 50 of the Act, the recovery,

which has been made from personal search may only be

vitiated. The recovery which is made from other than

personal search may not be vitiated. This is one part of

the argument.

16. In so far as, the application of Section 42 of

the Act is concerned, it is categorical case of the

prosecution that gazetted officer of the police were present

at the time of recovery. The Rule 76 of the U.P. Narcotic

Drugs Rules, 1986 empowers Gazetted Officer of the

police also as the person empowered under Section 41 (2)

of the Act. In the case of Shekhar Suman Verma Vs. The

Superintendant of N.C.B. and another, (2016) 11 SCC

368, the Hon'ble Supreme Court relying on the principle

of law in the case of M. Prabhulal vs. Assistant Director,

Directorate of Revenue Intelligence, (2003) 8 SCC 449,

observed that "where a search is conducted by a

Gazetted Officer himself, acting under Section 41 of

the NDPS Act, it was not necessary to comply with

the requirement of Section 42 of the Act." Instant in

also one of such cases. The alleged recovered quantity is

commercial.

17. In so far as the case of applicant-Pradeep Singh

Fartiyal is concerned, his first bail application has already

been rejected on 17.08.2021. It is being argued that there

is no certificate under Section 65 (B) of the Indian

Evidence Act, 1872. This is the stage of bail. Prosecution

has enough opportunity to procure and produce such

document as and when required, may be at the trial also.

It is also argued that the applicant-Pradeep Singh Fartiyal

has no criminal history. But on behalf of the State, it has

rightly been argued that this ground was available to the

applicant-Pradeep Singh Fartiyal when his first bail

application (BA1 No. 1994 of 2021) was rejected on

17.08.2021. In fact, there is no new ground to enlarge the

applicant-Pradeep Singh Fartiyal on bail.

18. Having considered, this Court is of the view

that it is not a case fit for bail and the bail applications

deserve to be rejected.

19. Accordingly, the bail applications are rejected.

(Ravindra Maithani, J.) 06.09.2022 AK