Uttarakhand High Court
BA1/516/2025 on 25 June, 2025
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
2025:UHC:5384
Office Notes,
reports, orders
or proceedings
SL.
Date or directions COURT'S OR JUDGE'S ORDERS
No.
and Registrar's
order with
Signatures
BA1 No. 516 & 282 of 2025
Hon'ble Rakesh Thapliyal, J.
1. Mr. Siddharath Sah and Mr. B.M. Pingal,
learned counsel for the applicant.
2. Mr. Siddharath Bisht, learned AGA with Mr.
Himanshu Sain, learned Brief Holder the State.
3. Present applicants 'Bacchi Singh Chilwal, son of
Bishan Singh and Mahendra Chilwal, son of Bacchi
Singh Chilwal' are praying for regular bail in relation
to First Information Report dated 05.01.2025 bearing
FIR No. 01 of 2025, Police Station - Khansyun, District
- Nainital wherein present applicants have been
implicated for the offences punishable under Section
8/20 read with Section 60 of the NDPS Act.
Mr. Siddharath Sah, learned counsel for the applicant
submits that contraband charas, which is shown to be
recovered from the present applicants are commercial
quantity, therefore, Section 37 of the NDPS Act will
come in their way. He further submits that both the
applicants are innocent and have been falsely
implicated in the present case, which is evident from
the fact that inventory was not prepared in the
prescribed Form IV under Rule 8 of the "Narcotics
Drugs and Psychotropic Substances (Search, Seizure,
Sampling and Disposal) Rules, 2022. Furthermore,
there is no proper certification by the concerned
Magistrate since in the inventory there is only an
endorsement of the concerned Magistrate, which itself
reveals that there is no proper application of mind
while certifying the hand written inventory. He further
submits that in view of the recent judgment of this
Court, though non compliance of Section 52A of the
NDPS Act is not fatal and it will not vitiate the trial but
the same can be considered for considering the bail
application, since in terms of Section 52 A (iv) of the
NDPS Act, evidence collected are primary evidence,
and as such, certification of the inventory is also
primary evidence. He further submits that if inventory
is not prepared in the prescribed form and proper
certification is not made by the Magistrate, then it is
sufficient to draw an inference that applicants are not
involved in committing the offence. He further submits
that one of the conditions as stipulated in Section 37 of
the NDPS Act is about criminal antecedents. In this
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case, applicant - Bacchi Singh Chilwal has no previous
criminal history, which has not been disputed by
learned State Counsel, therefore, if Bacchi Singh
Chilwal is bailed out, then there is no possibility that
after being released on bail, he will indulge in such
activity. So far as other accused Mahendra Chilwal is
concerned, Mr. B.M. Pingal, learned counsel for the
applicant submits that there is only one criminal case
against him under the Excise Act, in which he is
already bailed out and this fact has not been disputed
by the learned State Counsel.
4. Learned counsel for the applicants have placed
reliance on the judgment passed by this Court in First
Bail Application No. 513 of 2025 (Pankaj Singh Kuwar
Vs. State) decided on 22.05.2025, particularly,
paragraph 33 of the said judgment, which is being
reproduced as under:
"33. This court is fully agreeable with the
submissions as advanced by the learned A.G.A., however,
this court is of the view that certainly any procedural lapse
in non-compliance of Section 52A of the NDPS Act will not
vitiate the trial but since in view of the judgment of the
Hon'ble Apex Court in the case of Bharat Aambale vs.
State of Chhattisgarh the evidence collected under Section
52A are primary evidence in view of Section 52A (iv) of
NDPS Act then this aspect can be looked into while
considering the bail application and if there is no proper
substantial compliance of Section 52A then this aspect may
be taken into consideration to examine whether there are the
reasonable grounds that the applicant is not involved in the
commission of the crime. Even otherwise, as it appears from
the record there is no proper substantial compliance of
Section 42 of the NDPS Act, therefore, this court is
primarily of the view after considering the submissions as
advanced by the learned counsel for the applicants and the
learned A.G.A. that there are the reasonable grounds
available that the applicants are not guilty of the offence as
alleged to be committed."
5. After hearing the learned counsel for the parties
and further taking into consideration that since there is
no proper substantial compliance of Section 52A of the
NDPS Act, as there is no proper certification by the
Magistrate concerned and applicant Bacchi Singh
Chilwal has no criminal history and there is no
possibility that in future, he will indulge in such
activity and other accused, Mahendra Chilwal, is
already bailed out in criminal case under Excise Act,
which is not related to NDPS Act, therefore, there is no
possibility that in future, he will also indulge in such
activity, this Court is of the view that both the
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applicants deserve for bail.
6. Accordingly, without expressing any opinion on
the merit of the case, both the bail applications are
allowed.
7. Let the applicants ''Bacchi Singh Chilwal, son of
Bishan Singh and Mahendra Chilwal, son of Bacchi
Singh Chilwal" be released on bail on furnishing their
personal bonds and two sureties each of the like
amount, by each of them, to the satisfaction of the
court concerned.
8. It is made clear that after being released on bail,
the applicants will attend each and every date fixed
before the trial court and will not take any
unnecessary adjournment. If applicants fail to comply
with the aforesaid condition, the prosecution is free to
take steps against them and the trial court may
proceed the trial without being with by the
observations as made above.
(Rakesh Thapliyal, J.)
25.06.2025.
SKS
