Prahald Lal vs State Of Uttarakhand
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Uttarakhand High Court

Prahald Lal vs State Of Uttarakhand on 12 March, 2025

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
                   1st Bail Application No. 1644 of 2024


Prahald Lal                                                 ........Applicant
                                          Versus
State of Uttarakhand                                        ......Respondent


Mr. B.M. Pingal, learned Advocate for the applicant.
Mr. S.C. Dumka, learned AGA for the State of Uttarakhand.

Hon'ble Ashish Nathani, J. (Oral)

The present bail application has been filed on behalf of the applicant, Prahlad Lal, aged 35 years, son of Deen Dayal, resident of Shrigaon, Dhauntari, Kotwali Uttarkashi, District Uttarkashi. The applicant is currently in judicial custody in connection with FIR No. 77 of 2024, registered at Police Station Rishikesh, District Dehradun, under Sections 8/20/60 of the NDPS Act.

2. On 09.02.2024 at 14:20 hours, a police team led by Sub Inspector Satyendra Singh apprehended the applicant near Bhaniyawala Cross Section following an informer's tip-off that he was transporting illegal contraband. Upon stopping the applicant's pickup truck, bearing registration number UK 010 CA 1084, the police conducted a search and recovered a bag containing several cylindrical pieces of suspected Charas from under the driver's seat. A drug detection kit was allegedly used at the scene to confirm the presence of Charas. The applicant was subsequently arrested, and the case was registered under the NDPS Act.

3. The contraband was sent for forensic analysis, and the FSL report dated 24.05.2024 confirmed that the sample tested positive for Charas. The charge sheet was filed against the applicant on 22.07.2024, and he has remained in custody since 10.02.2024. The applicant's bail plea was earlier rejected by the Special Judge (NDPS Act), District Dehradun, vide order dated 27.02.2024.

4. The learned counsel for the applicant argues that he has been falsely implicated and that the case against him is fraught with legal and evidentiary deficiencies, making it unfit for continued incarceration. The applicant's primary contention is that the state failed to conduct a proper sampling process, thereby vitiating the case under the NDPS Act.

5. It is submitted that as per the recovery memo, the contraband was allegedly found in multiple cylindrical pieces, yet the sampling process was conducted selectively, without ensuring that samples were drawn from each individual piece.

6 The applicant relies on the judgment of the Hon'ble Supreme Court in Gaunter Edwin v. State of Goa (1995) 3 SCC 145, which clearly establishes that in cases where the recovered substance consists of multiple distinguishable units, it is essential that samples be drawn from every unit to conclusively determine that the entire recovered substance is a narcotic drug. In the absence of such representative sampling the state's claim that the entire recovered quantity was Charas remains legally unsustainable.

7. The applicant further contends that since the NDPS Act prescribes stringent penalties based on the quantity of contraband seized, this lapse on the part of the state is fatal.

8. Applicant further alleges that apart from the deficiency in the sampling process, the applicant further submits that there was a delay in drawing samples, as the alleged recovery took place on 09.02.2024, but the sample was extracted for forensic testing only on 15.02.2024. There is no clear documentation regarding the storage and handling of the contraband during this period, leading to concerns of contamination and tampering. This delay further weakens the state's case and creates serious doubts about the integrity of the recovered material.

9. The applicant submits that he has no prior criminal history, and his continued incarceration is causing severe hardship to his family, including three minor children, who are entirely dependent on him. Furthermore, the investigation has concluded, the charge sheet has been filed, and there is no risk of evidence tampering or influencing witnesses, making his continued detention unnecessary.

10. Based on these grounds, the applicant prays that the be enlarged on bail as the state has failed to establish a prima facie case against him under the NDPS Act, and his detention at this stage serves no legal purpose.

11. The learned Additional Government Advocate (AGA), appearing on behalf of the State of Uttarakhand, has vehemently opposed the present bail application, contending that the offense committed by the applicant is grave and falls within the category of commercial quantity under the NDPS Act, 1985, thereby attracting strict liability and stringent conditions under Section 37 of the Act. It is submitted that 1.500 kg of Charas was recovered from the applicant's possession, and such a large quantity of contraband has severe societal implications, particularly concerning drug trafficking and substance abuse issues.

12. They assert that the applicant was caught red-handed in possession of the contraband and that the recovery was made in accordance with the mandatory provisions of the NDPS Act. The contraband was recovered from a bag placed under the driver's seat, and the applicant was the sole occupant of the vehicle at the time. This, according to the state, establishes that the applicant had conscious possession of the recovered Charas, as required under Section 35 of the NDPS Act, which presumes culpable mental state unless proven otherwise.

13. The state relies on the Forensic Science Laboratory (FSL) report dated 24.05.2024, which conclusively confirms the presence of Charas in the tested sample. It is argued that once the FSL report scientifically establishes the nature of the contraband, the burden shifts upon the applicant under Section 54 of the NDPS Act to prove that he was not in conscious possession of the narcotic substance. No such material has been brought on record by the applicant to rebut this statutory presumption.

14. Addressing the applicant's argument regarding selective sampling, the state contends that the FSL report categorically confirms that the tested sample contained Charas, and once a portion of the recovered substance has been tested and found to be narcotic, the entire seizure must be presumed to be of the same nature.

15. Additionally, they argue that the delay in sampling (from 09.02.2024 to 15.02.2024) does not vitiate the recovery, as the contraband was stored in the police Malkhana under proper custody, and no evidence has been presented by the applicant to suggest tampering. The chain of custody was maintained, and the sample was drawn before the concerned Magistrate, ensuring compliance with Section 52-A of the NDPS Act.

16. Lastly, the learned AGA argues that if the applicant is released on bail, there is a strong possibility of him absconding or engaging in similar activities, thereby endangering public safety and hampering the trial. Considering the commercial quantity involved, the statutory restrictions under Section 37 of the NDPS Act, and the overwhelming evidence against the applicant, the state submits that the bail application deserves outright rejections.

17. Heard arguments advances by both the parties and perused the records.

18. The Court finds that there is a crucial deficiency in the State's case pertaining to the improper and selective sampling process conducted on the recovered contraband. The legal position regarding representative sampling in cases under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is well settled, and failure to adhere to the prescribed sampling procedures raises serious doubts about the State's claim regarding the actual quantity and nature of the contraband.

19. The Hon'ble Supreme Court in Gaunter Edwin Kircher v. State of Goa, (1995) 3 SCC 145, has categorically held that when the alleged contraband consists of multiple distinguishable pieces, the State must ensure that samples are drawn from each individual unit or from every representative portion. This principle has been reiterated in Narcotics Control Bureau v. Sukh Dev Raj Sodhi, (2011) 6 SCC 392, where the Court emphasized that failure to establish that the entire seized material is contraband creates a fundamental lacuna in the State's case.

20. Additionally, In Union of India v. Mohanlal & Anr. (2016) 3 SCC 379, the Court emphasized that when multiple packages of narcotics are seized, samples must be drawn from each package to ensure the integrity and reliability of the evidence. The Court observed that failure to adhere to this procedure could lead to doubts about the prosecution's case and potentially result in acquittal.

21. In the present case, it is evident from the recovery memo and FSL report dated 24.05.2024 that the contraband allegedly recovered from the applicant's vehicle consisted of multiple cylindrical pieces. However, the FSL report does not specify whether the sample was drawn from each individual pieces or if it was selectively taken from only a few units.

22. The absence of such clarification is significant, as the entire charge against the applicant is dependent on the weight of the contraband. Since the NDPS Act imposes severe penalties based on the total quantity of the seized narcotic substances, the State was required to demonstrate, beyond reasonable doubt, that all 1.500 kg of the recovered material was Charas. The failure to test the entirety of the seized material weakens the State's assertion that the entire recovered substance was a narcotic drug.

23. While the offense alleged against the applicant is of a serious nature, it is well settled that bail cannot be denied solely on the gravity of the allegations, particularly when serious doubts exists regarding the State's ability to prove its case at trial. The Hon'ble Supreme Court in Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, has held that procedural lapses and evidentiary gaps in NDPS cases must be carefully scrutinized, as they directly impact the fairness of the trial.

24. Furthermore, the applicant has no prior criminal history, and the investigation in the case has been completed, with the charge sheet already filed on 22.07.2024. The continued incarceration of the applicant, in the absence of clear and convincing evidence establishing the total weight of the contraband, would not serve the ends of justice.

25. In view of the considerations mentioned above, this Court finds that the applicant has made out a prima facie case for the grand of bail.

26. Consequently, the bail application is allowed, and it is directed that the applicant, be released on bail, subject to the satisfaction of the trial Court.

(Ashish Naithani, J) 12.03.2025