Uttarakhand High Court Reiterates the Rule in Negation of Bail in NDPS Cases

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The present case is of Devi Datt and Ors. v. State of Uttarakhand. The case arises out of an application filed for grant of bail. The Applicants have been registered for offence under Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”). The Police were conducting routine checks of vehicles. They received information of Ganja being transported in a vehicle by the Applicants. The Applicants were searched before a Block Development Officer. He was authorized by the Magistrate. Upon search, 27.959 kg of Ganja was recovered. The Applicants were arrested. The recovered contraband was seized and sealed.

Applicants’ Arguments

It has been submitted that the Applicants are falsely implicated and are innocent. The procedure prescribed in Sections 42, 50, 52 and 57 of the NDPS Act are not complied. Furthermore, there is no independent witness. It has also been submitted that the Applicants were unaware of the presence of contraband. Lastly, that the applicants have no criminal history.

Moreover, it was submitted that in a similar case, bail was granted. Hence, the Applicants will be released in this case as well.

State’s Arguments

Per contra, it has been submitted that the search and seizure are in accordance with law. Section 42 is not applicable in this case. Furthermore, due to the odd timing, independent witnesses could not be found. The contraband was sealed and tested in a forensic laboratory. It was found that the contraband was ganja.

Court’s View

The Court observed that each criminal case presents its own peculiar facts. Each application for bail must be tested on ground peculiar to that case. The Court referred to Gian Chand and Others v. State of Haryana, (2013) 14 SCC 420. It was observed that one additional fact could make a world of difference. The Court further deliberated on ‘conscious possession’. It observed that the Applicants were in conscious possession of contraband.

The Court referred to Sections 50 and 37 of the NDPS Act. This is reproduced in para 15 of the judgment. Section 50 stipulates the ‘[C]onditions under which search of persons shall be conducted’. And Section 37 stipulates ‘[O]ffences to be cognizable and non-bailable’.

The Court further emphasized on the conditions when the accused will be released. The Court referred to State v. Syed Amir Hasnain, (2002) 10 SCC 88. Therein, the Court held that the High Court is bound by Section 37 of the NDPS Act. Accused would be entitled to be released only upon satisfaction of Section 37. Furthermore, the Court also referred to Megh Singh v. State of Punjab, 2004 (1) CCSC 337. It stated that Section 50 applied only in case of personal search.

Court’s Opinion on the Present Case

In the present case, the contraband was recovered from the vehicle. Hence, compliance with Section 50 is not required. The Court further deliberated on Section 42. The Court found that the said provision has two components. First related to the basis of information, it can be:

  1. Personal knowledge;
  2. Information given by person and taken down in writing.

Second, the information must relate to commission of offence punishable. It must be punishable under Chapter IV of the NDPS Act. Only when the two components are fulfilled, Section 42 can be applied. Since the recovery was made in a public place, the Court observed that Section 42 is inapplicable. Furthermore, the Court relied on Babubhai Odhavji Patel v. State of Gujrat, (2005) 8 SCC 725. It was held that Sections 52 and 57 are merely directory.

The Court further observed that for granting bail, there must be ‘reasonable grounds’. Reasonable grounds that the person is not guilty of such offence. Additionally, that the person is not likely to commit offence on bail. The Court referred to Anil Kumar Yadav v. State (NCT) of Delhi and Anr., 2018(1) CCSC 117. Therein, the Apex Court held that time spent in custody cannot be a relevant consideration. Moreover, the Court must be guided by the exception under Section 37(b)(ii) of the NDPS Act.

Court’s Decision

The Court thus held that prima facie the Applicants appear to have committed the offence. Hence, there is no reason to have been falsely implicated. Accordingly, the applications were rejected.


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