Uttarakhand High Court
Deewan Chandra vs State Of Uttarakhand on 28 April, 2023
HIGH COURT OF UTTARAKHAND AT NAINITAL
Second Bail Application No. 218 of 2022
Deewan Chandra ........Applicant
Versus
State of Uttarakhand ........Respondent
Present:-
Mr. Vinoda Nand Barthwal, Advocate for the applicant.
Mr. B.P.S. Mer, Brief Holder with Ms. Sangeeta Bhardwaj,
Brief Holder for the State.
Hon'ble Ravindra Maithani, J. (Oral)
Applicant Deewan Chandra is in judicial
custody in FIR No.218 of 2021, under Section 8/20 of the
Narcotic Drugs and Psychotropic Substances Act, 1985
("the Act"), Police Station-Mukhani, District- Nainital. He
has sought his release on bail.
2. Heard learned counsel for the applicant and
perused the record.
3. This is the second bail application. The first
bail application was dismissed in non-prosecution on
16.08.2022.
4. According to the FIR, on 14.08.2021, 1150
grams charas was recovered from a bag, which the
applicant was holding.
5. Learned counsel for the applicant would
submit that in the instant case, compliance of Section 50
of the Act has not been made; the bag was attached to the
body, therefore, it shall be considered as a personal
search. He would submit that there may be contingencies
that some articles may not be kept in the pocket and
somebody may keep that articles in a bag. That should be
construed as "part of body".
6. Learned State Counsel would submit that
charas was recovered from a bag, which the applicant was
holding.
7. Undoubtedly, if compliance of Section 50 of the
Act is not made, it may vitiate the recovery. Section 50 of
the Act applies in case of personal search. Can searching
a bag be termed as a personal search? The answer is,
"No".
8. In the case of Jarnail Singh Vs. State of
Punjab, (2011) 3 SCC 521, the Hon'ble Supreme Court
has discussed the law on the point and held that the
provisions of Section 50 of the Act would only come into
play when the drug/narcotic/NDPS substance is
recovered as a consequence of the body search of the
accused. In case, the recovery of the narcotic is made
from a container being carried by the individual, the
provisions of Section 50 would not be attracted. In Paras
17 and 18, the Hon'ble Supreme Court observed as
hereunder:-
"17. This Court in Kalema Tumba v. State of
Maharashtra (1999) 8 SCC 257 : 1999 SCC (Cri)
1422, discussed the provisions pertaining to "personal
search" under Section 50 of the NDPS Act and held as
follows: (SCC p. 260, para 4)
"4. ... If a person is carrying a bag or some other
article with him and a narcotic drug or a
psychotropic substance is found from it, it
cannot be said that it was found from his
'person'."
"18. Similarly, in Megh Singh v. State of Punjab (2003)
8 SCC 666 : 2004 SCC (Cri) 58, this Court observed
that: (SCC p. 670, para 16)
"16. A bare reading of Section 50 shows that it
only applies in case of personal search of a
person. It does not extend to a search of a
vehicle or a container or a bag, or premises."
9. In the case of Jarnail Singh (supra), the Hon'ble
Supreme Court has also quoted from the judgment in the
case of State of HP Vs. Pawan Kumar, (2005) 4 SCC 350.
In that case, the Hon'ble Supreme Court has categorically
held that, "A bag, briefcase or any such article or
container, etc. can, under no circumstances, be
treated as body of a human being. They are given a
separate name and are identifiable as such. They
cannot even remotely be treated to be part of the
body of a human being."
10. In the instant case, recovery was made from a
bag, which the applicant was holding. It is not personal
search. There is no question of applicability of Section 50
of the Act. It is a case of recovery of commercial quantity
of charas from the possession of the applicant. The
provisions of bail in such cases is governed by the
provisions of Section 37 of the Act and in such cases, bail
may not be granted, unless the Court has reason to
believe that the accused has not committed any offence
and there are no chances of repeat offence.
11. Having considered, this Court is of the view
that there is no reason to grant bail to the applicant.
Accordingly, the bail application deserves to be rejected.
12. The second bail application is rejected.
(Ravindra Maithani, J.)
28.04.2023
Ravi Bisht
