BA1/3112/2021 of PUSHKAR SINGH Vs STATE OF UTTARAKHAND

HIGH COURT OF UTTARAKHAND AT NAINITAL

First Bail Application No. 3112 of 2021

Pushkar Singh

….....Applicant

Versus

State of Uttarakhand

….….Respondent

Present:-

Mr. Shobhit Batra, Advocate holding brief of Mr. S.K. Mandal, Advocate for the applicant. Mr. Lalit Miglani, A.G.A. for the State.

Hon’ble Ravindra Maithani, J. (Oral)

Applicant Pushkar Singh is in judicial custody in Case Crime No.20 of 2021, under Sections 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the Act”), Police Station Lamgara, 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 13.11.2021, the

applicant was spotted with bag on his hand. When his bag was checked, it had charas, which weighed 1.5 Kg.

4. Learned counsel for the applicant would submit that it is case of non-compliance of Section 50 of the Act; in the FIR, there are 2 police officers, whereas, in

the recovery memo, 3 police officers have signed; the sample was taken before the Magistrate; the police personnel visited the spot on their personal vehicle. It makes out case for bail. In support of his contention, learned counsel for the applicant has placed reliance on the judgment in the case of Kalayath Nassar Vs. State of Kerala, AIR 2000 SC 733.

5. In the case of Kalayath Nassar (supra) also, recovery was made from bag, which the accused was carrying. In Para 6 of the judgment, the Hon’ble Supreme Court observed as hereunder:

“6. The dictum in Balbir Singh has been explained away by the Constitution Bench. In case where the searching officer failed to communicate to the accused, who was subjected to search, that he has right to be searched in the presence of gazetted officer or Magistrate there would be non-compliance with the requirement of Section 50. Merely for the reason that the accused did not make request to the searching officer on his own that the search should be conducted in the presence of such officer it cannot be held that there was no need to inform him of that right.”

6. Learned State Counsel would submit that commercial quantity of charas was recovered from the possession of the applicant; compliance of Section 50 of

the Act is not applicable; Forensic Report supports the prosecution case.

7. In fact, the law is not unsettled. If search is personal, the provisions of Section 50 are to be followed. There is no substitute to that. What is personal search and what is non personal search, these are the issues, which, at times, are raised.

8. In the case of Jarnail Singh Vs. State of Punjab, (2011) 3 SCC 521, the Hon’ble Supreme Court has adverted to this aspect of the matter as to what is personal search and what is non-personal search. In Paras 16, 17 and 18, the Hon’ble Supreme Court observed as hereunder:-

“16. This apart, it is accepted that the narcotic/opium i.e. 1 kg and 750 gm was recovered from the bag (thaili) which was being carried by the appellant. In such circumstances, Section 50 would not be applicable. The aforesaid section can be invoked only in cases where the drug/narcotic/NDPS substance is recovered as consequence of the body search of the accused. In case, the recovery of the narcotic is made from container being carried by the individual, the provisions of Section 50 would not be attracted.”

17. This Court in Kalema Tumba v. State of Maharashtra (1999) 8 SCC 257 : 1999 SCC (Cri) 1422, discussed the provisions pertaining to “personal

search” under Section 50 of the NDPS Act and held as follows: (SCC p. 260, para 4)

“4. … If person is carrying bag or some other article with him and narcotic drug or psychotropic substance is found from it, it cannot be said that it was found from his ‘person’.”

“18. Similarly, in Megh Singh v. State of Punjab (2003) 8 SCC 666 : 2004 SCC (Cri) 58, this Court observed that: (SCC p. 670, para 16)

“16. bare reading of Section 50 shows that it only applies in case of personal search of person. It does not extend to search of vehicle or container or bag, or premises.”

In the instant case, the search was made from

bag. It was not personal search. In fact, in case of recovery from personal search and search other than personal search, compliance of Section 50 was mandatory, in view of the judgment in the case of Dilip and Another Vs. State of M.P, (2007) 1 SCC 450, but this law has been overruled by the Hon’ble Supreme Court in the case of State of Punjab Vs. Baljinder Singh and Another, (2019) 10 SCC 473. In this case, the Hon’ble Supreme Court categorically observed that, “The decision of this Court in 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 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 State of Punjab v. Baldev Singh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080, and other judgments. In Para 18, the Hon’ble Supreme Court observed as hereunder:-

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

10. There is no discrepancy with regard to the number of the police personnel. In fact, two police personnel were on patrolling when they spotted the applicant with charas, they called another police

personnel with the weighing scale. It is stated that the Forensic report confirms that the alleged contraband is charas.

11. Having considered the entirety of facts, this Court is of the view that it is not case fit for bail. Accordingly, the bail application deserves to be rejected.

The bail application is rejected.

Ravi Bisht

(Ravindra Maithani, J.) 25.11.2022