Uttarakhand High Court
Deewan Singh vs State Of Uttarakhand on 25 April, 2024
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
First Bail Application No. 2591 of 2023
Deewan Singh ........Applicant
Versus
State of Uttarakhand ........Respondent
Present:-
Mr. Piyush Sammal and Ms. Sarita Bisht, Advocates for the
applicant.
Ms. Manisha Rana Singh, A.G.A. for the State.
Hon'ble Ravindra Maithani, J. (Oral)
Applicant Deewan Singh is in judicial custody
in FIR No.0030 of 2023, under Sections 8/20 of the
Narcotic Drugs and Psychotropic Substances Act, 1985
("the Act"), Police Station Lamgarha, District Almora. He
has sought his release on bail.
3. According to the FIR, on 01.11.2023, 1.200 Kg
charas was recovered from the possession of the
applicant. In fact, the FIR records that on that date, the
Station House Officer ("the SHO") was on patrolling duty
along with police personnel when they intercepted the
applicant and recovered charas.
4. Learned counsel for the applicant would
submit that the entire recovery is bad and it has not been
done in accordance with law; the recovery could have
been made by the empowered officer as specified under
Section 42 of the Act. If the officer is not empowered, he
should have called the empowered officer at the place of
incident, and, thereafter, the investigation would have
been done by a separate person. He would submit that
the officer joining the recovery team cannot be an
Investigating Officer, whereas, it is argued that in the
instant case, the SHO, who was the part of the recovery
team, himself prepared an inventory report under Section
52A of the Act, which means, he has entered into the
arena of investigation, which, it is argued, may tend to
make Section 58 of the Act redundant, which provides
punishment for vexatious entry, search, seizure or arrest.
5. Learned State Counsel would submit that it is
a case of chance recovery. In such cases, provisions of
Sections 42 and 50 of the Act are not applicable. It is also
argued that in the instant case, the provisions of Section
42 of the Act would not come into play because it was a
recovery from a public place and any officer could have
made such search under Section 43 of the Act, of such
departments, which are mentioned under Section 42 of
the Act.
6. Although, there is dispute on this aspect
because learned counsel for the applicant would submit
that officers and departments are specified under Section
42 of the Act, and only such officers of such departments
may act under Section 42 of the Act.
7. Learned State Counsel would also submit that
with regard to investigation, there is no specific provision
in the Act, therefore, in view of Section 51 of the Act, read
with Section 4 of the Code of Criminal Procedure, 1973
("the Code"), the provision of Code shall come into play. It
is argued that as per Section 157 of the Code, a Sub-
Inspector may conduct investigation, which has been
done in the instant case.
8. It is a stage of bail. Much of the discussion is
not expected of. Arguments are being appreciated with the
caveat that any observation made in this order shall have
no bearing at any subsequent stage of the trial, or in any
other proceeding.
9. It is a case of chance recovery. In the case of
Sorabkhan Gandhkhan Pathan and Another Vs. State of
Gujarat, (2004) 13 SCC 608, the Hon'ble Supreme Court
has categorically held that, "in cases of chance
recovery, it is not necessary to follow the procedure
contemplated under Sections 42/50 of the Act." (Para
No.6 of the judgment).
10. According to the State, the investigation is
being done by the Sub-Inspector. He was not the part of
the recovery team.
11. Insofar as the preparation of the inventory by
the SHO is concerned, its effect and legality may fall for
scrutiny during trial. It is a case of recovery of commercial
quantity of charas.
12. Having considered, this Court does not see any
ground, which may entitle the applicant to bail.
Accordingly, the bail application deserves to be rejected.
13. The bail application is rejected.
(Ravindra Maithani, J.)
25.04.2024.
Ravi Bisht
