High Court · 2025

Mr. Deepak Bisht , D.A.G. t he St at e of Ut t arakhand.

2. This first bail applicat ion has been m oved by t he applicant , seeking regular in F.I .R. No.538 of 2023, under Sect ion Act , regist ered at Police St at ion Ram nagar, Dist rict Nainit al. of N.D.P.S. 8/ 20/ 60 t he t aken t he spot , wherein The applicant was apprehended on 3. 28.12.2023 at about 18: 25 at Ram nagar- Kashipur Highway. An invent ory was t he prepared on applicant was apprehended wit h 62 Kgs. of Ganj a. The seized cont raband was produced before t he Magist rat e on t he next day i.e. on 29.12.2023, but due t o paucit y of t im e, on t hat day, sam ples t he seized could not be cont raband. seized Thereaft er, cont raband was again produced before t he sam ples Magist rat e t hat day, sam ples 02.01.2024, but on could not be t he alleged t aken t he alleged cont raband cont raband and was sent back for safe t o Malkhana cust ody. Thereaft er, on 05.02.2024, t he applicant was not produced before t he Magist rat e, t herefore, sam ples could not be t aken on t hat day also. Ult im at ely, t he seized cont raband were produced on 19.02.2024 before t he Judicial Magist rat e, Ram nagar and, on t hat day, for t he first t im e, t he seal of t he bag cont aining t he alleged cont raband was opened and t he sam ples were sent t o Forensic Science t aking Laborat ory. I t is cont ended by learned counsel for 4. t he applicant t hat applicant has falsely been im plicat ed in t he inst ant crim e, has no crim inal hist ory and is languishing in j ail since 28.12.2023. Learned counsel for t he applicant subm it s t hough sam ples of t he alleged cont raband for t he first t im e was t aken on 19.02.2024, but invent ory t he Magist rat e on 29.12.2023, which is in violat ion of Rule 8 of Narcot ic Drugs and Psychot ropic Subst ances ( Seizure, St orage, Sam pling and Disposal) Rules, 2022. Rule 8 of t he aforesaid Rules reads as under: cert ified by “ 8 . A p p l i ca t i o n t o M a g i st r a t e .- Aft er t he seized m at er ial under t he Act is forwarded t o t he officer- in- charge of t he nearest police st at ion or t o t he officer em powered under sect ion 53 of t he Act or if it is seized by such an officer him self, he shall prepare an invent ory of such m at erial in Form - 4 and apply t o t he Magist rat e, at t he earliest , under sub- sect ion ( 2) of sect ion 52A of t he Act in Form - 5.” t he at t ent ion of Learned counsel for t he applicant has 5. t o Sect ion 52- A( 2) ( a) of t he NDPS Act , 1985. Sect ion 52- A of t he NDPS Act is ext ract ed as hereunder: - t his Court cont rolled “ 5 2 A . D i sp o sa l o f se i ze d n a r co t i c d r u g s a n d p sy ch o t r o p i c su b st an ce s.—( 1 ) The Cent ral Governm ent m ay, having regard t o t he hazardous nat ure, vulnerabilit y t o t heft , subst it ut ion, const raint of proper st orage space or any ot her relevant considerat ion, in respect of any narcot ic drugs, psychot r opic subst ances, conveyances, by not ificat ion in t he Official Gazet t e, drugs, psychot ropic cont rolled subst ances, subst ances or conveyance or class of narcot ic drugs, class of psychot ropic subst ances, class of cont rolled subst ances or conveyances, which shall, as soon as m ay be aft er t heir seizure, be disposed of by such officer and in such m anner as t hat Governm ent m ay, from t im e t o t im e, det erm ine aft er follow ing t he procedure hereinaft er specified. subst ances narcot ic specify such 4 [ narcot ic subst ances, 4 subst ances, ( 2 ) Where drugs, cont rolled psychot ropic subst ances or conveyances] has been seized and forwarded t o t he officer- in- charge of t he t he officer t o nearest police st at ion or em powered under sect ion 53, t he officer referred t o in sub- sect ion ( 1) shall prepare an [ narcot ic drugs, invent ory of cont rolled psychot ropic subst ances or conveyances] cont aining such det ails relat ing t o t heir descript ion, qualit y, quant it y, m ode of packing, m arks, num bers or such ot her ident ifying part iculars of t he 4 [ narcot ic drugs, psychot ropic subst ances, cont rolled subst ances or conveyances] or t he packing in which t hey are packed, count ry of origin and ot her part iculars as t he officer referred t o in sub- sect ion ( 1) m ay consider relevant t o t he ident it y of t he 4 [ narcot ic drugs, psychot ropic subst ances, cont rolled subst ances proceedings under t his Act and m ake an applicat ion, t o any Magist rat e for t he purpose of— conveyances] t he t he t aking, cert ifying cor rect ness of ( a) invent ory so prepar ed; or ( b) t he presence of such m agist rat e, phot ographs of 5 [ such drugs, subst ances or conv eyances] and cert ifying such phot ographs as t rue; or ( c) allowing t o draw represent at ive sam ples of such drugs or subst ances, in t he presence of such m agist rat e and cert ifying t he corr ect ness of any list of sam ples so drawn. ( 3 ) Where an applicat ion is m ade under sub- sect ion ( 2) , t he Magist rat e shall, as soon as m ay be, allow t he applicat ion. ( 4 ) Not wit hst anding anyt hing cont ained in t he I ndian Evidence Act , 1872 ( 1 of 1972) or t he Code of Crim inal Procedure, 1973 ( 2 of 1974) , every court t rying an offence under t he t his Act , shall phot ographs drugs, cont rolled psychot ropic subst ances or conveyances] and any list of sam ples drawn under sub- sect ion ( 2) and t he Magist rat e, as pr im ary cert ified by evidence in respect of such offence.” subst ances, t reat 1 invent ory, [ narcot ic t he subm it t ed

6. Learned counsel for t he applicant has t hat provisions of furt her Sect ion 52A( 2) ( a) were not com plied wit h inasm uch as invent ory prepared by t he t he officer Magist rat e on 29.12.2023. But , while in- charge was cert ified by t he learned counsel signat ures t he officer cert ifying t he invent ory, t he correct ness of t he invent ory so prepared were not gone int o by t he Magist rat e. To subst ant iat e his t he argum ent s, applicant has subm it t ed t hat it is adm it t ed case of t he prosecut ion t hat t he seal of t he alleged cont raband was broken before t he Magist rat e t im e only on 19.02.2024 when sam ples were drawn and sent t o t he Forensic Science Laborat ory by t he t he Magist rat e. Therefore, he has subm it t ed t hat wit hout physically exam ining t he cont raband and weighing t he confiscat ed cont raband, t he correct ness about t he invent ory prepared in- charge could not be cert ified. He has furt her subm it t ed t hat since t he correct ness of t he invent ory so cert ified by t he Magist rat e is not as per t he procedure and since sub- sect ion 4 of Sect ion 52- A provides t hat t he invent ory so cert ified would be t reat ed as prim ary in respect of such evidence, evidence t herefore, by not following t he procedure as prescribed under Sect ion 52- A, t he whole t rial would get vit iat ed. He also subm it s t hat , t ill dat e, only one wit ness have been exam ined by t he prosecut ion. He also subm it s t hat in case, t he applicant is grant ed bail, he will not m isuse t he sam e and will furnish t he bail suret y as per t he sat isfact ion of t his Court . t he Learned St at e Counsel vehem ent ly 7. t he bail applicat ion. Learned opposed St at e Counsel adm it t ed t hat sam ples of t he alleged cont raband were t aken for t he first t im e on 19.02.2024 and invent ory was cert ified on 29.12.2023. He subm it s t he procedure will not vit iat e t he t rial and applicant will not be ent it led t o get benefit of t he m inor irregularit ies and, in fact , it is case of chance recovery. t hat m ere irregular it y

8. Considering t he subm ission learned counsel for t he part ies and wit hout expressing any opinion as t o t he final m erit s of t he case, t his Court is of t he view t hat applicant s deserve bail at t his st age.

9. The bail applicat ion is allowed.

10. Let t he applicant , nam ely, Gurvinder Singh be released on bail, on execut ing personal bond and furnishing t wo reliable suret ies, each of t he sat isfact ion of Court concerned, subj ect t he following condit ions: like am ount , t o i) The applicant shall at t end t he t r ial Court regularly, and, he will not seek any unnecessary adj our nm ent . ii) The applicant shall not direct ly or indirect ly m ake any inducem ent , t hreat or prom ise t o any person acquaint ed wit h t he fact s of t his case. iii) The applicant shall not leave I ndia wit hout any prior perm ission of t he t rial Court . I t is clarified t hat if t he applicant 11. m isuses or violat es any of t he condit ions, im posed upon him , t he prosecut ion will be free t o m ove t he court for cancellat ion of bail. Uj j wal ( A l o k M a h r a , J.) 09.07.2025