High Court rejected bail application for applicant in NDPS case where 1.110 kg Charas was recovered from a bag. Court distinguished applicant's case from Sanjeev, holding Section 50 compliance not mandatory for bag searches, relying on Baljinder Singh and Jarnail Singh.
Bail application rejected; applicant remains in judicial custody.
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HIGH COURT OF UTTARAKHAND AT NAINITAL
First Bail Application No. 937 of 2022
Ravinder Singh ….....Applicant
Versus
State of Uttarakhand ….….Respondent
Present:-
Mr. Vinod Sharma, Advocate for the applicant.
Mr. V.K. Jemini, Deputy Advocate General with Ms. Meena Bisht, Brief Holder for the State.
Hon’ble Ravindra Maithani, J. (Oral)
Applicant Ravinder Singh is in judicial custody in FIR/Case Crime No.6 of 2022, under Sections 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “the Act”), Police Station Maneri, District Uttarkashi. He has sought his release on bail.
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Science Laboratory report confirmed that the recovered article as Charas .
“11. 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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now, learned counsel for the applicant has placed reliance on the law as laid down in the case of Sanjeev ( supra ).
“ 9. We have checked the original record to satisfy ourselves. Exhibits PW8/B, PW8/C, PW8/D and PW8/E, which are arrest memos, do not reflect that any option or choice was given to the Accused before their personal search was undertaken. It is true that the personal search did not result in recovery of any contraband material but the non-compliance of requirement of affording an option, was one of the reasons which weighed with the trial court in disbelieving the case of the prosecution.”
“ 4. The entire evidence was considered by the Trial Court and in the opinion of the Trial Court, broadly three features emerged from the evidence:
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With this view, the Trial Court by its judgment and order dated 31.08.2012 acquitted the Appellants of the offence for which they were charged.”
“ 12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an
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offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted.”
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 a consequence of the body search of the accused. In case, the recovery of the narcotic is made from a container being carried by the individual, the provisions of Section 50 would not be attracted.
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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 a person is carrying a bag or some other article with him and a narcotic drug or a 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. A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to a search of a vehicle or a container or a bag, or premises.”
20. It has come in evidence that although the body search of the appellant was conducted but no recovery of any narcotic was made. The body search only led to the recovery of Rs. 25 from his pocket.”
of the provisions is necessary in the case of personal search, not in any such which is not personal, it may be vehicle, it may be premises, it may be a bag or any other thing. In the instant case, the recovery has been made from a bag. The quantity is commercial. The FSL report confirmed it as Charas.
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(Ravindra Maithani, J.) 08.09.2022
Sanjay
2 issues framed by the court
Whether non-compliance with Section 50 of the NDPS Act vitiates the recovery when contraband is found in a bag carried by the applicant rather than on personal search.
Whether bail is maintainable given the commercial quantity of Charas recovered and reconciliation of Supreme Court precedents regarding Section 50 compliance.
Colour shows how this judgement treated each authority
State of Rajasthan vs. Parmanand and anotherReferred¶15
State of Rajasthan vs. Parmanand and another, (2014)5 SCC 345 · Who else cites this
S.K. Raju alias Abdul Haque alias Jagga vs. State of West BengalReferred¶15
S.K. Raju alias Abdul Haque alias Jagga vs. State of West Bengal, (2018)9 SCC, 708 · Who else cites this
Sanjeev and others vs. State of Himachal PradeshDistinguished¶15
Sanjeev and others vs. State of Himachal Pradesh, Manu/SC/0301/2022
Bharat Ram vs. State of UttarakhandFollowed¶19
Bharat Ram vs. State of Uttarakhand, BA1 No.318 of 2022
State of Punjab vs. Baljinder Singh and anotherFollowed¶19
State of Punjab vs. Baljinder Singh and another, (2019)10 SCC 473 · Who else cites this
State of Punjab vs. Baldev SinghApplied¶34
State of Punjab vs. Baldev Singh, (1999)6 SCC 172 · Who else cites this
Jarnail Singh vs. State of PunjabApplied¶39
Jarnail Singh vs. State of Punjab, (2011)3 SCC 521 · Who else cites this
Kalema Tumba v. State of MaharashtraApplied¶42
Kalema Tumba v. State of Maharashtra [(1999) 8 SCC 257 · Who else cites this
Megh Singh v. State of PunjabApplied¶44
Megh Singh v. State of Punjab [(2003) 8 SCC 666 · Who else cites this
Ravinder Singh
State of Uttarakhand
Ravindra Maithani
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
