Arvind ......Appellant/ vs State Of Uttarakhand on 18 March, 2026

IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Bail Application No. 2 of 2024
In
Criminal Appeal No. 819 of 2024
Arvind ......Appellant/Applicant
Vs.
State of Uttarakhand .....Respondent

Counsel Presence:
Mr. T. A. Khan, learned Senior Counsel assisted by Mr. Mohd. Shafy, learned
counsel for the Applicant.
Mr. S.S. Chauhan, learned D.A.G., assisted by Mr. Vikash Uniyal, learned
Brief Holder for the State of Uttarakhand.

Hon'ble Ashish Naithani, J (Oral)
1. The present bail application has been filed by the Appellant-
Applicant Arvind under section 430 of B.N.S.S. 2023, praying for
suspension of the sentence awarded and release on bail during the
pendency of Criminal Appeal No. 819 of 2024, arising out of FIR
No. 0197 of 2022, Police Station Raiwala, District Dehradun.

2. The said appeal has been preferred against the judgment and order
dated 09.12.2024 passed by the Ld. Special Judge (NDPS Act),
Rishikesh, District Dehradun in Special Sessions Trial No. 14/2023
whereby the appellant was convicted for the offence punishable
under Section 22(c) read with Section 8(c) of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (hereinafter referred to as
"the NDPS Act") and sentenced to ten years of rigorous
imprisonment along with a fine of Rs. 1,00,000/- (Rupees One
Lakh), with in case of default of payment of fine, two months'
additional imprisonment. The Appellant- Applicant has been in
continuous judicial custody since 12.11.2022.

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Bail Application No. 2 of 2024 in Criminal Appeal No. 819 of 2024----------Arvind Vs State of
Uttarakhand

Ashish Naithani J.
3. The brief facts of the case, as per the records are that on 12-11-
2022, at approximately 18:40 hours, a police party was on patrolling
duty. Near the unpaved road leading to the Snake Charmer Colony,
before Anand Utsav Ashram, they spotted the appellant-convict
coming from the colony holding a plastic sheet. On suspicion, he
was apprehended. Upon searching, the police recovered 20
injections of Buprenorphine (IP Leegesic 2ml) and 20 small vials of
Pheniramine Maleate (Avil 10ml). It was alleged that the Applicant-
Appellant failed to produce any license for possessing these drugs,
which are covered under the NDPS Act.

4. Upon completion of investigation, charge-sheet was submitted
against the appellant, and the case was committed for trial before
the court of learned Special Judge, NDPS Act, Rishikesh, District
Dehradun.

5. Upon conclusion of trial, the learned Special Judge, NDPS Act,
Rishikesh, vide judgment and order dated 09.12.2024, convicted the
appellant under Sections 8/22 of the NDPS Act and sentenced him
accordingly.

6. Aggrieved by the aforesaid judgment and order of conviction, the
appellant has preferred the present criminal appeal before this
Court, which is pending consideration. During pendency of the
appeal, the appellant has filed the present application seeking
suspension of sentence and release on bail.

7. Heard learned counsel for the parties and perused the records.

8. Mr. Tanveer Alam Khan, learned Senior Advocate for the
Applicant-Appellant, submits that the Applicant-Appellant is
innocent and has been falsely implicated. It is submitted that the
Applicant-Appellant has no criminal history and is in custody since
12.11.2022. It is further contended that the State's case suffers from

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Bail Application No. 2 of 2024 in Criminal Appeal No. 819 of 2024----------Arvind Vs State of
Uttarakhand

Ashish Naithani J.
serious legal and factual infirmities, and the mandatory provisions
of the NDPS Act have not been complied with.
9. It is argued that the alleged recovery is vitiated due to non-
compliance of Section 50 of the NDPS Act. Learned counsel
highlighted that no real and meaningful option was given to
Applicant-Appellant to be searched before a Gazetted Officer or
Magistrate, and the alleged consent letter was prepared
subsequently after the recovery had already been affected.
10. Learned Senior Advocate argued that this establishes that the
process was inverted; the "consent" was obtained after the search
and seizure were complete, rendering the entire compliance of
Section 50 a farce and an afterthought, putting "the horse behind the
cart."
11. Learned counsel further submits that no independent public
witness was associated at the time of the alleged recovery, despite
the admitted presence of public persons at the spot. It is also
contended that there are material contradictions in the statements of
prosecution witnesses regarding the manner of recovery,
preparation of documents, and timing of events.
12. It is also argued that there are serious discrepancies regarding the
time of departure of the police party and the alleged time of
recovery and arrest, which render the prosecution version doubtful.
Further, procedural lapses such as absence of proper identification
of contraband, lack of clarity regarding sealing and packing, and
non-examination of relevant witnesses have also been pointed out.

13. Per contra, learned State counsel has opposed the bail application
and submitted that the Applicant-Appellant has been convicted after
a proper trial and the State has successfully established recovery of
commercial quantity of contraband, namely20 injections of

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Bail Application No. 2 of 2024 in Criminal Appeal No. 819 of 2024----------Arvind Vs State of
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Ashish Naithani J.
Buprenorphine (IP Leegesic 2ml) and 20 small vials of Pheniramine
Maleate injections, from his possession.
14. It is further submitted that all mandatory provisions of the NDPS
Act have been duly complied with, and the learned trial court, after
appreciating the entire evidence including testimony of eight
prosecution witnesses and the FSL report, has rightly recorded
conviction.

15. Upon due consideration, it is not in dispute that the Applicant-
Appellant stands convicted for an offence involving commercial
quantity, and therefore, the rigours of Section 37 of the NDPS Act
are attracted even at the stage of consideration of bail pending
appeal.

16. The law regarding suspension of sentence during the pendency of
an appeal is well settled. The appellate court is not required to
meticulously re-appreciate the evidence at this stage, but it must see
whether there are reasonable grounds for believing that the appeal
has chances of success and whether the applicant has made out a
case for suspension of sentence. The Court must also consider the
factors such as the nature of the offence, the period of custody
already undergone, and the likelihood of the appeal being heard
within a reasonable time.

17. The most significant infirmity in the State's case, which strikes at
the root of the entire trial, pertains to the violation of Section 50 of
the NDPS Act. Section 50 mandates that before conducting a search
of a person on the basis of prior information or on suspicion, the
police officer must inform the person of his right to have his body
searched before a gazetted officer or a Magistrate.

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Bail Application No. 2 of 2024 in Criminal Appeal No. 819 of 2024----------Arvind Vs State of
Uttarakhand

Ashish Naithani J.
18. The manner in which this right is communicated and waived, and
the preparation of the consent document, are matters of great legal
significance in NDPS cases. The Sub-Inspector himself (PW-1)
admitted in his examination-in-chief that the contrabandwere first
sealed, then the accused was informed of his rights, and then the
consent letter was prepared.
19. Equally troubling is the chronological impossibility embedded in
the prosecution's own evidence. PW-5, Constable Krishna Prakash
Baluni, who was the writer of the recovery memo and an eyewitness
to the entire proceedings, categorically stated in para 5 of his cross-
examination that the police party departed from the police station at
8:45 PM on the night in question. This statement is fundamentally
incompatible with the State's own case that the recovery took place
at 6:40 PM and the arrest was effected at 7:15 PM. If the recovery
memo writer himself left the police station only at 8:45 PM, it is
impossible for him to have been present at the scene of recovery at
6:40 PM or to have written the recovery memo at that time. This
contradiction goes to the root of the State's case and is not a minor
or trivial discrepancy.

20. It is also a material consideration that the appellant is a young
man, approximately 23 years of age at the time of his arrest, with
absolutely no prior criminal history. He has now been in continuous
judicial custody for more than three years and six months having
been arrested on 12.11.2022. The minimum sentence prescribed
under Section 22 of the NDPS Act for possession of commercial
quantity is ten years, and the appellant has been sentenced to the
minimum.

21. The appeal is pending before this Court and given the nature of the
grounds raised, the appeal cannot be expected to be disposed of in

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Bail Application No. 2 of 2024 in Criminal Appeal No. 819 of 2024----------Arvind Vs State of
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Ashish Naithani J.
the immediate future. Allowing the appellant to continue in custody
for the entire pendency of the appealwould result in grave and
irreversible injustice to a young man who may ultimately be found
to be innocent in law.

22. In view of the aforesaid facts and circumstances, and particularly
considering the arguable issues relating to compliance of mandatory
provisions, this Court is satisfied, at this stage, that there exist
reasonable grounds for believing that the appellant may not be
guilty of the offence alleged, and that he is not likely to commit any
offence while on bail. Thus, the twin conditions of Section 37 of the
NDPS Act stand satisfied for the limited purpose of suspension of
sentence pending appeal.

23. At this stage, this Court is not required to record a conclusive
finding on the merits of the case; however, the cumulative effect of
the aforesaid circumstances indicates that the appeal raises
substantial questions which cannot be said to be devoid of merit.

ORDER

Accordingly, the Bail Application is hereby allowed.

The sentence awarded to the appellant vide judgment and order dated 09.12.2024 passed by the Ld. Special Judge (NDPS Act), Rishikesh, District Dehradun in Special Session Trial No. 14/2023 is hereby suspended during the pendency of Criminal Appeal No. 819 of 2024. The appellant Arvind, S/o Rajendra Singh Saini, presently lodged in District Jail Dehradun, shall be released on bail subject to the following conditions:

i. The Appellant-Applicant shall furnish a personal bond in the sum of Rs. 25,000/- (Rupees Twenty Thousand) with two sureties of the like amount each, to the satisfaction of the Ld. Trial Court/concerned Jail Superintendent.

Bail Application No. 2 of 2024 in Criminal Appeal No. 819 of 2024----------Arvind Vs State of Uttarakhand

Ashish Naithani J.

ii. The appellant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case.

iii. The Appellant-Applicant shall not leave the territorial jurisdiction of this Court without prior permission. iv. The Appellant-Applicant shall provide his correct address and mobile number to the concerned court and shall not change his residence without prior intimation to the said court.

List this matter on 20.05.2026.

(Ashish Naithani, J.) Dated: 18.03.2026 NR/

Bail Application No. 2 of 2024 in Criminal Appeal No. 819 of 2024----------Arvind Vs State of Uttarakhand

Ashish Naithani J.