BA1/1069/2022 of FURKAN Vs STATE OF UTTARAKHAND

HIGH COURT OF UTTARAKHAND AT NAINITAL

First Bail Application No. 2195 of 2021

Mehnaz alias Najjo

….....Applicant

Versus

State of Uttarakhand ….….Respondent

Present:-

Mr. Raj Kumar Singh, Advocate for the applicant. Mr. Ranjan Ghildiyal, A.G.A. with Mr. Deepak Bisht, Brief Holder for the State.

With

First Bail Application No. 2347 of 2021

Sattar Ali

….....Applicant

Versus

State of Uttarakhand ….….Respondent

Present:-

Mr. Karan Anand, Advocate for the applicant.

Mr. Ranjan Ghildiyal, A.G.A. with Mr. Deepak Bisht, Brief Holder for the State.

With

First Bail Application No. 1069 of 2022

Furkhan

….....Applicant

Versus

State of Uttarakhand ….….Respondent

Present:-

Mr. Ankur Sharma, Advocate for the applicant.

Mr. Ranjan Ghildiyal, A.G.A. with Mr. Deepak Bisht, Brief Holder for the State.

Hon’ble Ravindra Maithani, J. (Oral)

Since all these bail applications arise from one and the same FIR, they are being decided by this common order.

2. Applicants Mehnaz alias Najjo, Sattar Ali and Furkhan are in judicial custody in FIR/Case Crime No.125 of 2021, under Sections 8/21/29/60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “the Act”), Police Station Sahaspur, District Dehradun. They have sought their release on bail.

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

4. According to the FIR, on 25.06.2021, police was on patrolling duty. They have left the police station at 10:35 PM. While on duty, they spotted car. Police signalled the car to stop, the car stopped, but two of its occupants tried to run away. There was another occupants in the car, she was Mehnaz alias Najjo. The police intercepted the person, who were trying to run away and asked them, as to why were they running? But they did not give any satisfactory reply. The car was searched. Nothing was found from inside the car, but

when the boot was opened, according to the FIR, heroin was found in it, which was 313 grams.

5. Learned counsel for the applicants would submit that it is totally false case; it is not possible that the police party leaves the police station on private car for patrolling; it is the case of total non-compliance of Section 42 of the Act; the senior police officer was not informed about it; it is also argued that it is case of total non-compliance of Section 165(3) of the Code of Criminal Procedure, 1973 (for short, “the Code”) because search was not made by the Station House Officer (for short, “the SHO”) and there is no order of the SHO directing some other person to search. It is argued that in view of Section 51 of the Act the provisions of the Code with regard to search may be made applicable.

6. On behalf of the applicants Furkhan and Mehnaz alias Najjo, in addition to it, it has also been argued that both are the husband and wife; they have taken lift from its driver who is Sattar Ali; they are innocent; they had no knowledge of any contraband in the car.

7. In support of his contention, learned counsel for the applicants has placed reliance on the principle of law as laid down in the case of Boota Singh and others vs. State of Haryana, 2021 SCC OnLine 324. In that case, in fact, police had prior information, despite that compliance of Section 42 of the Act has not been made. Hon’ble Supreme Court held that total non-compliance of Section 42 of the Act is impermissible.

8. In the instant case, police had no prior

information. It is case of chance recovery. vehicle was intercepted; its two of its occupants tried to run away; they were questioned; when they did not reply satisfactory, the vehicle was searched and suddenly heroin was recovered. In such cases in view of the principle as laid down in the case of Sorabkhan Gandhkhan Pathan and another vs. State of Gujarat, (2004)13 SCC 608, the provisions of Section 42 are not applicable. In so far as non-compliance of Section 165(3) of the Code is concerned undoubtedly, there is no such record on that aspect.

9. It is argued that in the cases of search under the provisions of the Act, the provision of Code shall be applicable in view of Section 51 of the Act. Section 51 of

the Act does not make all the provisions of Code per se applicable in the cases of search under the provision of the Act. If the provisions of the Code are not inconsistent with the provisions of the Act, to that extent they are made applicable. Section 165 contemplates situation when the Investigating Officer may search place during the course of investigation. In the instant case, the police was on patrolling duty, they were not investigating any case, as such. Therefore, prima facie at this stage, it cannot be said that it is case of non-compliance of Section 165(3) of the Act. The allegedly recovered quantity is commercial. At midnight, the applicants were apprehended with it.

10. Having considered, this Court is of the view that this is not case fit for bail and the bail applications deserve to be rejected.

11. The bail applications are rejected.

Sanjay

(Ravindra Maithani, J.) 09.11.2022