Dismissed

Deepak Pandey v. State of Uttarakhand

Uttarakhand HC6 Sept 2022BA1/36/2022

Case brief

AI extract

What is this about?

The High Court of Uttarakhand disposed of four bail applications filed by persons arrested under the NDPS Act. Addressing arguments regarding non-compliance of Section 50 and Section 42(2), the Court held that the presence of a Gazetted Officer at the time of recovery obviated strict adherence to these provisions for bail purposes. The Court denied bail to all applicants.

What did the court decide?

Bail applications were rejected; applicants remained in judicial custody.

Deepak Pandey Vs State of Uttarakhand — Narcotics (NDPS) | Uttarakhand HC (2022)

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HIGH COURT OF UTTARAKHAND AT NAINITAL

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First Bail Application No. 1786 of 2021

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Prabhat Singh Bisht ….....Applicant

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Versus

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State of Uttarakhand ….….Respondent

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Present:-

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Mr. Vijay Bhatt, Advocate for the applicant. Mr. S.S. Adhikari, Deputy Advocate General along with Mr. Balvinder Singh, Brief Holder for the State.

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With

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Second Bail Application No. 184 of 2021

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Pradeep Singh Fartiyal ….....Applicant Versus State of Uttarakhand ….….Respondent

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Present:-

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Mr. B.M. Pingal, Advocate for the applicant. Mr. S.S. Adhikari, Deputy Advocate General along with Mr. Balvinder Singh, Brief Holder for the State.

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With

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First Bail Application No. 2922 of 2021

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Piyush Khadayat ….....Applicant

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Versus

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State of Uttarakhand ….….Respondent

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Present:-

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Mr. Deep Prakash Bhatt, Advocate for the applicant. Mr. S.S. Adhikari, Deputy Advocate General along with Mr. Balvinder Singh, Brief Holder for the State.

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With

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First Bail Application No. 36 of 2022

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Deepak Pandey ….....Applicant

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Versus

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State of Uttarakhand ….….Respondent

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Present:-

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Mr. M.S. Pal, Senior Advocate assisted by Mr. Vikramditya Shah, Advocate for the applicant.

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Mr. S.S. Adhikari, Deputy Advocate General along with Mr. Balvinder Singh, Brief Holder for the State.

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Hon’ble Ravindra Maithani, J. (Oral)

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

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Applicants-Prabhat Singh Bisht, Piyush Khadayat & Deepak Pandey are in judicial custody in FIR/Case Crime No. 190 of 2021, under Sections 8/20/60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the Act”), Police Station Kichha, District Udham Singh Nagar. Applicant-Pradeep Singh Fartiyal is in judicial custody in FIR/Case Crime No. 190 of 2021, under Sections 29 read with Section 8/20 of the Act, Police Station Kichha, District Udham Singh Nagar. They have sought their release on bail.

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According to the FIR, on 12.06.2021 two cars were intercepted. One was Honda Amaze driven by

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co-accused Vipul Shaila, in which applicant-Piyush Khadayat was co-passenger. Another car was Wagon R being driven by applicant-Prabhat Singh Bisht and in it Deepak Pandey was co-passenger. The applicants at the time of interception revealed that they had charas. They were told their rights to be searched before a Magistrate or Gazetted Officer. Circle Officer, Police reached at the spot. Thereafter, when the search was made, from Honda Amaze Car 1.094 Kg Charas and from Wagon R Car 6.914 Kg Charas was recovered. The applicants were arrested.

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Learned counsel for the applicant-Prabhat Singh Bisht would submit that, in the instant case compliance of Section 50 of the Act has not been made, which is mandatory. It is submitted that the option to be searched before Magistrate or Gazetted Officer was joint, which is not an option in the eye of law, in view of the law laid down by the Hon’ble Supreme Court in the case of State of Rajasthan vs. Parmanand & another; (2014) 5 SCC 345. In the case of Paramanad ( Supra ), in para 17, the Hon’ble Supreme Court inter alia observed “the

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communication of this right has to be clear, unambiguous and individual”. Further the Court observed “We are, therefore, of the view that the

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accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before the nearest gazetted officer or before the nearest Magistrate.

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On behalf of the applicant-Prabhat Singh Bisht, it is argued that in the instant case, the compliance of Section 42 (2) of the Act has not been made. There is no independent witness. There is no chance recovery. He has no criminal history. Hence, it is a case fit for bail.

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Learned Senior Counsel appearing for the applicant-Deepak Pandey would reiterate the arguments as made on behalf of the applicant-Prabhat Singh Bisht. He would submit that in the instant case, the fundamental rights and statutory rights of the applicants have been influenced. Despite prior information, no arrangements were made to secure the presence of Gazetted Officer or Magistrate, when cars were intercepted. Section 50 of the Act has been violated. Hence, it is a case fit for bail.

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Learned counsel appearing for the applicantPiyush Khadayat would argue that the applicant was a co-passenger. Nothing was recovered from him. He was

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going to meet his brother. His call details have not been examined. Hence, it is a case fit for bail.

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On behalf of the applicant-Pradeep Singh Fartiyal, it is submitted that there is no evidence against him except confession of the co-accused, which is not legally admissible evidence.

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On the other hand, learned State Counsel would submit that when the cars were intercepted, the applicants were occupants of the car; commercial quantity of charas was recovered from each of the cars. It is argued that the search was made in the presence of Circle Officer, who is a Gazetted Officer. From the possession of the applicants, commercial quantity of the charas was found. Hence, it is not a case fit for bail.

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With reference to applicant-Pradeep Singh Fartiyal, learned State Counsel would submit that first bail application of the applicant has already been rejected on merits. This is a second bail application and no new ground has been made out, which may entitle him for bail.

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At this, learned counsel for the applicantPradeep Singh Fartiyal would submit that the prosecution

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did not have the certificate under Section 65 (B) of the Indian Evidence Act, 1872 to prove the call details and applicant-Pradeep Singh Fartiyal has no criminal history.

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In so far as compliance of Section 50 of the Act is concerned, it is to be done in case of personal search not such it is other than personal. Reference has been made on the judgment of State of Rajasthan vs. Parmanand & another ( supra) , it is true that as and when the compliance of Section 50 of the Act is to be made, it has to be individual information givenh each of the arrestee. It should not be joined. It should be clear, unambiguous and individual. The question is whether compliance of Section 50 of the Act is required in the instant case?

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It is a stage of bail, much of the discussion is not expected of. Learned counsel appearing for the applicant-Prabhat Singh Bisht would submit that in the instant case, apart from car, personal search has also been done. This Court has interpreted the application of Section 50 of the Act, keeping in view of the judgment in the case of Parmanad ( supra ), S.K. Raju alias Abdul Haque alias Jagga Vs. State of West Bengal, (2018) 9 SCC 708, Dilip and another vs. State of M.P., (2007) 1 SCC

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450 and State of Punjab Vs. Baljinder Singh and another (2019) 10 SCC 473.

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In the First Bail Application No. 318 of 2022, Bharat Ram Vs. State of Uttarakhand, this Court has

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observed:

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“ Therefore, the law as laid down in the case of Baljinder ( supra) will have binding effect and if, search is not personal, the compliance of Section 50 of the Act is not mandatory. If personal search and search from bag or other article is also done and compliance of Section 50 of the Act is not made; in such contingencies, according to the law, as laid down in the case of Baljinder ( supra) , the recovery to the extent of personal search would only be vitiated. The search and the recovery, which is not from the personal search would not be vitiated. In the instant case, the recovery is not from personal search. ”

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In the instant case, although the search of the car and person has also be done. Therefore, in view of the judgment in the case of Baljinder (s upra ), in the case of non-compliance of Section 50 of the Act, the recovery, which has been made from personal search may only be vitiated. The recovery which is made from other than personal search may not be vitiated. This is one part of the argument.

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In so far as, the application of Section 42 of the Act is concerned, it is categorical case of the prosecution that gazetted officer of the police were present at the time of recovery. The Rule 76 of the U.P. Narcotic

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Drugs Rules, 1986 empowers Gazetted Officer of the police also as the person empowered under Section 41 (2) of the Act. In the case of Shekhar Suman Verma Vs. The Superintendant of N.C.B. and another, (2016) 11 SCC 368, the Hon’ble Supreme Court relying on the principle of law in the case of M. Prabhulal vs. Assistant Director, Directorate of Revenue Intelligence, (2003) 8 SCC 449, observed that “ where a search is conducted by a Gazetted Officer himself, acting under Section 41 of the NDPS Act, it was not necessary to comply with the requirement of Section 42 of the Act.” Instant in also one of such cases. The alleged recovered quantity is commercial.

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In so far as the case of applicant-Pradeep Singh Fartiyal is concerned, his first bail application has already been rejected on 17.08.2021. It is being argued that there is no certificate under Section 65 (B) of the Indian Evidence Act, 1872. This is the stage of bail. Prosecution has enough opportunity to procure and produce such document as and when required, may be at the trial also. It is also argued that the applicant-Pradeep Singh Fartiyal has no criminal history. But on behalf of the State, it has rightly been argued that this ground was available to the applicant-Pradeep Singh Fartiyal when his first bail

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application (BA1 No. 1994 of 2021) was rejected on 17.08.2021. In fact, there is no new ground to enlarge the applicant-Pradeep Singh Fartiyal on bail.

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

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Accordingly, the bail applications are rejected.

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(Ravindra Maithani, J.) 06.09.2022

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Deepak Pandey v. State of Uttarakhand

Case brief

What is this about?

What did the court decide?

Deepak Pandey v. State of Uttarakhand

Case brief

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