Uttarakhand High Court
Aashiq vs State Of Uttarakhand on 23 February, 2023
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 55 of 2022
With
Bail Application (IA) No. 2 of 2022
Aashiq ........Appellant
Versus
State of Uttarakhand ........Respondent
Present:-
Mr. Raj Kumar Singh, Advocate for the appellant.
Mr. J.S. Virk, Deputy Advocate General, along with Mr. Rakesh
Joshi, Brief Holder, for the State
Coram : Hon'ble Sharad Kumar Sharma, J.
Hon'ble Ravindra Maithani, J.
Hon'ble Ravindra Maithani, J. (Oral)
The appellant has been convicted in Special
Sessions Trial No. 41 of 2021, State Vs. Aashiq by the Court
of Special Judge N.D.P.S. Act, Dehradun, District Dehradun
under Section 8/22(C) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (in short "the Act") and
sentenced to 14 years of rigorous imprisonment with a fine
of Rs. 1,00,000/-. The appellant seeks bail.
2. Heard learned counsel for the parties and perused
the record.
3. The learned counsel for the appellant would
submit that in the instant case, compliance of Section 50 of
the Act has not been made, which vitiates the entire
recovery. He would further submit that the personal search
of the appellant was also conducted. It makes compliance of
Section 50 of the Act mandatory. He would cite the principle
of law as laid down in the case of S.K. Raju alias Abdul
Haque alias Jagga Vs. State of West Bengal (2018) 9 SCC
708 and the bail order dated 19.07.2022 passed by a
Division Bench of this Court in Criminal Appeal No. 188 of
2021, Harpal Vs. State of Uttarakhand.
4. In fact, in the case of S.K. Raju (supra), the
Hon'ble Supreme Court, while relying on the principle of law
in the case of State of Rajasthan Vs. Parmanand and
another, (2014) 5 SCC 345, in para 18 observed as
hereunder:-
"18. In Parmanand [State of Rajasthan v.
Parmanand, (2014) 5 SCC 345: (2014) 2 SCC (Cri) 563] ,
on a search of the person of the respondent, no
substance was found. However, subsequently, opium was
recovered from the bag of the respondent. A two-Judge
Bench of this Court considered whether compliance with
Section 50(1) was required. This Court held that the
empowered officer was required to comply with the
requirements of Section 50(1) as the person of the
respondent was also searched. [Reference may also be
made to the decision of a two-Judge Bench of this Court
in Dilip v. State of M.P. [Dilip v. State of M.P., (2007) 1
SCC 450 : (2007) 1 SCC (Cri) 377] ] It was held thus :
(Parmanand [State of Rajasthan v. Parmanand, (2014) 5
SCC 345 : (2014) 2 SCC (Cri) 563] , SCC p. 351, para 15)
"15. Thus, if merely a bag carried by a person is
searched without there being any search of his person,
Section 50 of the NDPS Act will have no application. But
if the bag carried by him is searched and his person is
also searched, Section 50 of the NDPS Act will have
application."
5. In Criminal Appeal No. 188 of 2021, Harpal Vs.
State of Uttarakhand, the Division Bench of this Court, in
fact, has not laid down any principle of law.
6. Learned State Counsel, on the other hand, argues
that it is the case of sudden search and recovery was found
from the bag, and therefore there was no requirement of
compliance with Section 50 of the Act. In the case of Dilip
Vs. State of M.P., (2007) 1 SCC 450, the Hon'ble Supreme
Court has considered the applicability of Section 50 of the
Act in cases where search is made of a person and other
than the personal search. The Hon'ble Supreme Court
observed "In this case, the provisions of Section
50 might not have been required to be complied with so
far as the search of scooter is concerned, but, keeping in
view the fact that the person of the appellant was also
searched, it was obligatory on the part of P.W.10 to
comply with the said provisions. It was not done."
7. In the case of S.K. Raju (supra), the Hon'ble
Supreme Court did not as such lay down any law, but
followed the principles of law, as laid down in the case of
Parmanand (supra). Be it noted that in the case of
Parmanand (supra), the Hon'ble Supreme Court has followed
the principles of law, as laid down in the case of Dilip
(supra).
8. In the case of State of Punjab Vs. Baljinder Singh
and Another, (2019) 10 SCC 473, the Hon'ble Supreme
Court discussed the principles of law and held that the law
as laid down in the case of Dilip (supra) is not good law. In
para 17 & 18 of the judgment, the Hon'ble Supreme Court
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 [Dilip v. State of M.P., (2007) 1 SCC 450 : (2007) 1
SCC (Cri) 377] , 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 [Dilip v. State of
M.P., (2007) 1 SCC 450 : (2007) 1 SCC (Cri) 377] is not
correct and is opposed to the law laid down by this Court
in Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6
SCC 172 : 1999 SCC (Cri) 1080] and other judgments."
9. In the instant case, recovery has not been made
from the personal search of the appellant. In fact, it was
recovered from a bag which the appellant was holding. In
view of the law as laid down in the case of Baljinder Singh
(supra), there was no requirement of compliance of Section
50 of the Act and this aspect has already been considered by
the Court below in the impugned judgment and order.
10. It is a case of recovery of commercial quantity of
narcotic substances. This Court does not see any reasons to
grant bail to the appellant. Accordingly, the bail application
deserves to be rejected.
11. The bail application is rejected.
(Ravindra Maithani, J.) (Sharad Kumar Sharma, J.)
23.02.2023
Mahinder
