BA1/151/2022 of MAAN SINGH Vs STATE OF UTTARAKHAND

HIGH COURT OF UTTARAKHAND AT NAINITAL

First Bail Application No. 151 of 2022

Maan Singh

….....Applicant

Versus

State of Uttarakhand

….Opposite Party

Present:-

Mr. Ankur Sharma, Advocate for the applicant. Mr. Siddhartha Bisht, Brief Holder for the State.

Hon’ble Ravindra Maithani, J. (Oral)

Applicant Maan Singh is in judicial custody in Case Crime No. 254 of 2021, under Sections 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the Act”), P.S. Sahaspur, District Dehradun. He has sought his release on bail.

2. Heard learned counsel for the parties and perused the record.

3. According to the FIR, on 07.10.2021, the police intercepted the applicant and asked him to stop, but he did not stop. At that time, the applicant wanted to throw something from his hand, but the police recovered the bag, which the applicant was holding in his hand. When questioned, the applicant revealed that it had Charas. It

is the case that 1.50 kgs. Charas was recovered from the applicant.

4. Learned counsel for the applicant would submit that in the instant case though the applicant was given option to be searched before Gazetted Officer or Magistrate, but the search has not been made before any Gazetted Officer or Magistrate.

5. In support of this contention, learned counsel for the applicant has placed reliance on the judgment in the case of S.K. Raju @ Abdul Haque @ Jagga v. State of West Bengal, (2018) 9 SCC 709. He would refer to para 16 of it.

6. In para 16 of the judgment in the case of S.K. Raju @ Abdul Haque @ Jagga (supra), the Hon’ble Supreme Court has referred to the principle of law as laid down in the case of Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 and interpreted the provisions of Section 50 of the Act. In fact, Vijaysinh Chandubha Jadeja (supra) was with regard to compliance of Section 50 of the Act and as to how it has to be made. Concept of substantial compliance has been interpreted in the case of Vijaysinh Chandubha Jadeja (supra).

7. In the instant case, recovery was made from the bag, which the applicant was holding. It is not personal search. Learned counsel has argued that if without compliance of Section 50 of the Act, personal search is made, the recovery made from the personal search as well as otherwise shall get vitiated. He would refer to principle of law as referred in the case of State of Rajasthan v. Parmanand and another, (2014) 5 SCC 345.

8. In the instant case, the provisions of Section 50 of the Act are not attracted because the recovery is not made from personal search. In the cases, when the recovery is not made from personal search, it makes no difference that personal search has been made and compliance of Section 50 of the Act is not there. It has been settled by the Hon’ble Supreme Court in the case of State of Punjab v. Baljinder Singh and another, (2019) 10 SCC 473. In that case, the Hon’ble Supreme Court overruled the principle as laid down in the case of Dilip v. State of M.P., (2007) 1 SCC 450. In para 17 and 18 of the judgment, in the case of Baljinder Singh (supra), the Hon’ble Supreme Court observed as hereunder:-

“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.”

9. In fact, the case of Parmanand (supra) had also been based on the principle of law as laid down in the case of Dilip (supra).

10. In the instant case, commercial quantity of Charas has been recovered from the applicant. There is

no ground to grant him bail. Accordingly, the bail application deserves to be rejected.

11. The bail application is rejected.

Avneet/

(Ravindra Maithani, J.) 21.06.2022