Uttarakhand High Court
Devendra Singh vs State Of Uttarakhand on 8 June, 2023
HIGH COURT OF UTTARAKHAND AT NAINITAL
Second Bail Application No. 30 of 2023
Devendra Singh
........Applicant
Versus
State of Uttarakhand
........Respondent
Present:-
Mr. Harshit Sanwal, Advocate for the applicant.
Mr. Lalit Miglani, AGA for the State.
Hon'ble Ravindra Maithani, J. (Oral)
Applicant Devendra Singh is in judicial custody
in FIR No. 13 of 2021 dated 10.06.2021, under Sections
8/20 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 ("the Act"), P.S. Mukteshwar, District Nainital. He
has sought his release on bail.
2. This is second bail application of the applicant.
His first bail application has been dismissed in non-
prosecution on 17.11.2022.
3. Heard learned counsel for the parties and
perused the record.
4. According to the FIR, on 10.06.2021, 1.613 kgs.
Charas was recovered from the possession of applicant,
which he was carrying in his bag.
5. Learned counsel for the applicant would submit
that at the relevant time, recovery was also made from the
co-accused; compliance of Section 50 of the Act has not
been done; consent was joint, which vitiates the entire
proceedings.
6. Learned counsel for the applicant refers to the
principles of law as laid down in the case of State of
Rajasthan v. Parmanand & another, (2014) 5 SCC 345 and
S.K. Raju v. State of West Bengal, (2018) 9 SCC 708.
7. On the other hand, learned State Counsel would
submit that the recovery was not made from personal
search, therefore, there was no question of applicability of
Section 50 of the Act.
8. In the case of Parmanand (supra), the Hon'ble
Supreme Court relied on the judgment in the case of Dilip v.
State of Madhya Pradesh, (2007) 1 SCC 450. In the case of
Dilip (supra), recovery was made from a Scooter, but
personal search of the accused was also done. Still, the
court held that it is a case of non-compliance of Section 50
of the Act and a finding of acquittal was recorded.
9. In the case of S.K. Raju (supra), the Hon'ble
Supreme Court did not lay down any law as such, but did
follow the law as laid down in the case of Parmanand
(supra). Subsequent to it, in the case of State of Punjab v.
Baljinder Singh, (2019) 10 SCC 473, the Hon'ble Supreme
Court discussed the law and held that the law laid down in
the case of Dilip (supra) is not a correct law. In para 17 and
18, 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 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 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 State of Punjab v. Baldev Singh, (1999) 6 SCC 172 :
1999 SCC (Cri) 1080 and other judgments."
10. In the instant case, recovery has not been made
from personal search. It is from a bag. It does not require
compliance of Section 50 of the Act, in view of the judgment
in the case of Baljinder Singh (supra). No other point has
been raised on behalf of the applicant.
11. 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.
12. The second bail application is rejected.
(Ravindra Maithani, J.)
08.06.2023
Avneet/
