Uttarakhand High Court
CRLA/19/2023 on 8 August, 2023
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IA No. 1 of 2023 (Bail Application)
In
CRLA No. 19 of 2023
Hon'ble Manoj Kumar Tiwari, J.
Hon'ble Pankaj Purohit, J.
Mr. R.S. Sammal alongwith Ms. Sarita Bisht,
Advocate for the appellant/applicant.
(2) Mr. J.S. Virk, Deputy Advocate General for
the State.
(3) This appeal is preferred against the judgment
and order dated 07.12.2022, passed by learned
Special Sessions Judge (NDPS Act), Dehradun in
Special Sessions Trial No. 77 of 2021, State Vs.
Devender Lal Shah, whereby, the appellant is
convicted for offences punishable under 20(b)(II)(c)
r/w Section 8(c) of Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter
referred to as „the Act‟) and sentenced to undergo
rigorous imprisonment of 10 years and six months,
with a fine of Rs. 1,00,000/- (Rs. One Lakh), with
default stipulation of one year simple
imprisonment. He has sought his release on bail.
(4) It is contended by learned counsel for the
applicant that applicant has no criminal history and
there is no independent witness of the alleged
recovery. It is further contended from deposition of
P.W.1, it is revealed that provision contained in
Section 42 of the Act, particularly, Sub-Section 1 of
Section 42 of the Act was not complied at all,
which is held to be mandatory by Hon‟ble Supreme
Court in the case of Boota Singh and Others Vs.
State of Haryana (Criminal Appeal No. 421 of
2021). It is further contended that there are major
contradictions in the statement of prosecution
witnesses; as per the FIR, 1320 grams of charas
was recovered from the applicant, which is slightly
more than commercial quantity and the appellant is
in jail since 11.11.2020.
(5) Learned counsel for the applicant has placed
reliance upon the judgment rendered by Hon‟ble
Supreme Court in the case of Mohd. Muslim @
Hussain Vs. State (NCT of Delhi) [SLP (Crl)
No.915 of 2023]. Paragraph no. 20 of the said
judgment is extracted hereinbelow:-
"20. The standard to be considered therefore, is
one, where the court would look at the material in a
broad manner, and reasonably see whether the
accused‟s guilt may be proved. The judgments of
this court have, therefore, emphasized that the
satisfaction which courts are expected to record, i.e.
that the accused may not be guilty, is only prima
facie, based on a reasonable reading, which does
not call for meticulous examination of the materials
collected during investigation (as held in Union of
India v. Rattan Malik). Grant of bail on ground of
undue delay in trial, cannot be said to be fettered by
Section 37 of the Act, given the imperative of
Section 436A which is applicable to offences under
the NDPS Act too (ref. Satender Kumar Antil
supra). Having regard to these factors, the court is
of the opinion that in the facts of this case, the
appellant deserves to be enlarged on bail."
(6) Having regard to the aforesaid facts and
reasons, especially, alleged non-compliance of
Section 42(1) of the Act and without expressing any
final opinion on the merits of the case, we are,
prima facie, satisfied that the appellant/applicant
has made out a case for grant of bail, at this stage.
(7) Accordingly, bail application is allowed. Let
the appellant/applicant be released on bail, during
the pendency of this appeal, on his executing a
personal bond and furnishing two reliable sureties,
each of the like amount to the satisfaction of the
Court concerned.
(8) List in due course, for final hearing.
(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.)
08.08.2023
Ujjwal
