BA2/218/2022 of DEEWAN CHANDRA Vs STATE OF UTTARAKHAND

HIGH COURT OF UTTARAKHAND AT NAINITAL

Second Bail Application No. 218 of 2022

Deewan Chandra

….....Applicant

Versus

State of Uttarakhand ….….Respondent

Present:- Mr. Vinoda Nand Barthwal, Advocate for the applicant.

Mr. B.P.S. Mer, Brief Holder with Ms. Sangeeta Bhardwaj, Brief Holder for the State.

Hon’ble Ravindra Maithani, J. (Oral)

Applicant Deewan Chandra is in judicial custody in FIR No.218 of 2021, under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the Act”), Police Station-Mukhani, District- Nainital. He has sought his release on bail.

2. Heard learned counsel for the applicant and

perused the record.

3. This is the second bail application. The first bail application was dismissed in non-prosecution on 16.08.2022.

4. According to the FIR, on 14.08.2021, 1150 grams charas was recovered from bag, which the applicant was holding.

5. Learned counsel for the applicant would submit that in the instant case, compliance of Section 50 of the Act has not been made; the bag was attached to the body, therefore, it shall be considered as personal search. He would submit that there may be contingencies that some articles may not be kept in the pocket and somebody may keep that articles in bag. That should be construed as “part of body”.

6. Learned State Counsel would submit that charas was recovered from bag, which the applicant was holding.

7. Undoubtedly, if compliance of Section 50 of the Act is not made, it may vitiate the recovery. Section 50 of the Act applies in case of personal search. Can searching bag be termed as personal search? The answer is, “No”.

8. In the case of Jarnail Singh Vs. State of Punjab, (2011) 3 SCC 521, the Hon’ble Supreme Court has discussed the law on the point and held that the provisions of Section 50 of the Act would only come into play when 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. In Paras 17 and 18, the Hon’ble Supreme Court observed as hereunder:-

“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.”

9. In the case of Jarnail Singh (supra), the Hon’ble Supreme Court has also quoted from the judgment in the case of State of HP Vs. Pawan Kumar, (2005) 4 SCC 350. In that case, the Hon’ble Supreme Court has categorically held that, “A bag, briefcase or any such article or

container, etc. can, under no circumstances, be treated as body of human being. They are given separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of human being.”

10. In the instant case, recovery was made from bag, which the applicant was holding. It is not personal search. There is no question of applicability of Section 50 of the Act. It is case of recovery of commercial quantity of charas from the possession of the applicant. The provisions of bail in such cases is governed by the provisions of Section 37 of the Act and in such cases, bail may not be granted, unless the Court has reason to believe that the accused has not committed any offence and there are no chances of repeat offence.

11. Having considered, this Court is of the view that there is no reason to grant bail to the applicant. Accordingly, the bail application deserves to be rejected.

12. The second bail application is rejected.

(Ravindra Maithani, J.) 28.04.2023