Uttarakhand High Court
Aditya Tyagi vs State Of Uttarakhand on 29 September, 2022
HIGH COURT OF UTTARAKHAND AT NAINITAL
First Bail Application No. 2530 of 2021
Aditya Tyagi ........Applicant
Versus
State of Uttarakhand ........Respondent
Present:-
Mr. Naman Kamboj, Advocate holding brief of Mr. Dinesh
Kumar Tyagi, Advocate for the applicant.
Mr. Lalit Miglani, A.G.A. for the State.
Hon'ble Ravindra Maithani, J. (Oral)
Applicant Aditya Tyagi is in judicial custody in
FIR No.433 of 2021, under Section 8/22/60 of the
Narcotic Drugs and Psychotropic Substances Act, 1985
("the Act"), Police Station-Kotwali Gangnahar, District-
Haridwar. He has sought his release on bail.
2. Heard learned counsel for the parties and
perused the record.
3. According to the FIR, huge quantity of
psychotropic substances, in terms of injections, were
recovered from the possession of the applicant on
05.07.2021. In fact, according to the case, when a
motorcycle, driven by the applicant, was intercepted, it
had a box tied with it. When the box was opened,
psychotropic substances were found. Circle Officer and
Drug Inspector were also called and the recovery
proceedings commenced.
4. It is argued by learned counsel for the
applicant that it is a case of non-compliance of Sections
42 and 50 of the Act. It is also argued that the case is
false because, according to the Drug Inspector, who has
already been examined in the court, when he got the call
of alleged recovery, he was in Dehradun, which is
approximately 100 Kms away from the place of recovery.
In such circumstances, it is highly improbable that the
Drug Inspector could reach at the place of incident within
40 minutes.
5. Learned State Counsel would submit that it is
not a case of recovery from search of any private vehicle.
It is argued that the box was tied with the vehicle.
Therefore, provisions of Section 42 of the Act are not
applicable. Apart from it, it is also argued that it is not a
case of applicability of Section 50 of the Act.
6. First and foremost, the recovery was not made
from a box, which was tied with the vehicle. Therefore,
definitely there is no question of application of Section 42
of the Act. Even otherwise, the search was allegedly made
in the presence of the Gazetted Officer, which, in any
eventuality, takes this case out from the clutches of
Section 42 of the Act. It may, at the most, be a recovery
under Section 41 of the Act. A Gazetted Officer is an
empowered officer under Section 41 of the Act, as per
Rule 76 of the U.P. Narcotic Drugs Rules, 1986. In case of
Gazetted officer, requirement of Section 42 of the Act is
not mandatory as held by the Hon'ble Supreme Court in
the case of Sekhar Suman Verma Vs. Superintendant of
Narcotics Control Bureau and Another, (2016) 11 SCC
368.
7. Insofar as applicability of Section 50 of the Act
is concerned, it is argued that the applicant has also been
personally searched. Reliance has been made to the
principles of law, as laid down by the Hon'ble Supreme
Court in the case of State of Rajasthan Vs. Parmanand &
Another (2014) 5 SCC 345. In fact, in the case of
Parmanand (supra), the Hon'ble Supreme Court has relied
on the principles of law, as laid down in the case of Dilip
Vs. State of Madhya Pradesh (2007) 1 SCC 450. But,
subsequent to it, in the case of State of Punjab v.
Baljinder Singh, (2019) 10 SCC 473, the Hon'ble Supreme
Court held that the law laid down in the case of Dilip
(supra) is not a good law. The Hon'ble Supreme Court, in
Para 17 and 18 observed 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, 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 is not correct and is opposed to the law laid down
by this Court in Baldev Singh and other judgments."
8. Therefore, in this case, merely because
personal search was also made, it does not attract the
provisions of Section 50 of the Act. The recovery was
allegedly made other than the personal search.
9. Insofar as the statement of Drug Inspector is
concerned, these are factual aspects, which require
deliberations during trial.
10. Having considered, this Court is of the view
that it is not a case fit for bail. Accordingly, the bail
application deserves to be rejected.
10. The bail application is rejected.
(Ravindra Maithani, J.)
29.09.2022
Ravi Bisht
