BA1/1043/2022 of PANI RAM ALIAS PAWAN KUMAR Vs STATE OF UTTARAKHAND

HIGH COURT OF UTTARAKHAND AT NAINITAL

First Bail Application No.1043 of 2022

Pani Ram Alias Pawan Kumar

...Applicant

Versus

State of Uttarakhand

...Respondent

Present:-

Mr. Aditya Singh, Advocate for the applicant. Mr. Pankaj Kumar Joshi, Brief Holder for the State.

Hon’ble Ravindra Maithani, J. (Oral)

Applicant Pani Ram alias Pawan Kumar is in judicial custody in FIR No. 18 of 2021, under Sections 8, 20 and 60 of Narcotic Drugs and Psychotropic Substances Act, 1985 (“the Act”), Police Station Lamgada, District Almora. He has sought his release on bail.

2. Heard learned counsel for the parties and perused

the record.

3. According to the FIR, on 26.09.2021, police was on patrolling duty when they were informed that person is carrying charas in an Alto car. The car was spotted, when signalled to stop, the applicant was driving the car. The FIR records that since Police had information that car was carrying charas. The applicant was informed of his rights under Sections 50 of the Act. Thereafter, Circle Officer was

called and search was made, in which charas was recovered from the car.

4. Learned counsel for the applicant would submit that it is false case. The applicant has categorically stated that on the date of incident, his car was stopped by the police, when he objected to it, he was overpowered and beaten up and he was made to sign on the blank papers, which has subsequently been used to implicate in false case. Learned counsel would submit that these averments have been made in para 9 of the bail application, which has not been categorically denied and the denial is not specific. It is general in nature. Apart from it, it is also argued that it is case of non compliance of Section 50 of the Act.

5. In support of the contention, learned counsel for the applicant referred to the judgment in the case of S.K. Raju alias Abdul Haque alias Jagga Vs. State of West Bengal, (2018) 9 SCC 708 to argue that this is three Judges Bench judgment, in which it has categorically held that in case of personal search and search other than personal search, the compliance of Section 50 of the Act is mandatory. It is argued that in the subsequent judgment, the case of State of Punjab Vs. Baljinder Singh and another, (2019) 10 SCC 473, is perin curium because it has not referred to the judgment of S.K. Raju (supra).

6. Learned State counsel would submit that, in fact, the judgment in the case of Baljinder Singh (supra) has categorically decided the law and in case, where the recovery is made from other thanthe personal search, the provisions of Section 50 of the Act are not made out.

7. In fact, in the case of Dilip and another Vs. State of M.P., (2007) 1 SCC 450, the Hon’ble Supreme Court has held that in case personal search and other than personal search, the provision of Section 50 of the Act are to be mandatorily followed.

8. In the case of S.K. Raju (supra), the Hon’ble Supreme Court did not lay down any law for the first time. What the Court has done is just followed the principles of law, as laid down in the case of Parmanand (supra) and Dilip (supra). In para 18, the Hon’ble Supreme Court observed as hereunder:-

“18. In Parmanand [State of Rajasthan v. Parmanand, (2014) 5 SCC 345 : (2014) 2 SCC (Cri) 563], on search of the person of the respondent, no substance was found. However, subsequently, opium was recovered from the bag of the respondent. two-Judge Bench of this Court considered whether compliance with Section 50(1) was required. This Court held that the empowered officer was required to comply with the requirements of Section 50(1) as the person of the respondent was also searched. [Reference may also be made to the decision of two-Judge Bench of this Court in Dilip v. State of M.P. [Dilip v. State of M.P., (2007) 1 SCC 450 : (2007) 1 SCC (Cri) 377] ] It was held thus : (Parmanand [State of

Rajasthan v. Parmanand, (2014) 5 SCC 345 : (2014) 2 SCC (Cri) 563] , SCC p. 351, para 15)

“15. Thus, if merely bag carried by person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application.”

9. Subsequently, in the case of Baljinder Singh (supra), this question was formulated in para 8 of the judgment and thereafter answered. Para 8 of the judgment in the case of Baljinder Singh (supra) is as hereunder:-

“8. The question that arises in the matter is:

If person found to be in possession of vehicle containing contraband is subjected to personal search, which may not be in conformity with the requirements under Section 50 of the Act; but the search of the vehicle results in recovery of contraband material, which stands proved independently; would the accused be entitled to benefit of acquittal on the ground of non-compliance of Section 50 of the Act even in respect of material found in the search of the vehicle?”

The answer given by the Hon’ble Supreme Court

is noted in paras 17 and 18. This will have binding effect.

The paras 17 and 18 are as follows:-

“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 case [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 case [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 Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080] and other judgments.”

11. In the instant case, the search has been made from the car. In view of the settled law, in the instant case, there is no requirement of compliance of Section 50 of the Act. Insofar as, false implication is concerned, though not categorically, but it has been denied. It is the specific case of the prosecution that upon search charas in commercial quantity was recovered. In fact, the forensic report has also been enclosed, which confirms the prosecution case.

12. Having considered the entirety of facts, this Court does not see any reason to grant bail to the applicant. Accordingly, the bail application deserves to be rejected.

13. The bail application is rejected.

Jitendra

(Ravindra Maithani, J.)21.11.2022