Kapil alias Vikki alias Shankat v. State of Uttarakhand

Judgment

1. The present bail application has been filed by the Applicant, Kapil alias Vikki alias Shankat, seeking his enlargement on bail in connection with FIR No.563 of 2024, Police Station Rudrapur, District Udham Singh Nagar, registered under Sections 8/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

2. On 09.11.2024 at about 6:12 p.m., the police party apprehended the Applicant from a public place within the jurisdiction of Police Station Rudrapur and, upon his search, allegedly recovered 28 injections of Buprenorphine, 27 injections of Diazepam and 50

injections of Avil, totaling 105 injections. A first information report was registered the same day at 6:30 p.m., on the basis of the alleged seizure. The general diary entry reflecting the incident was also recorded at 6:12 p.m. 1st Bail Application No.388 of 2025, Kapil alias Vikki alias Shankat vs. State of Uttarakhand - 1 Ashish Naithani J.

3. The Applicant was taken into custody on 09.11.2024, and since then, he has remained in judicial custody. A bail application was preferred by him before the learned Special Judge, NDPS Act, Udham Singh Nagar, which came to be rejected by an order dated 09.12.2024. Aggrieved thereby, the Applicant has filed the present first bail application before this Court under Section 439 Cr.P.C., assailing the rejection order and praying for his release on bail during pendency of the trial.

4. Learned counsel for the Applicant, Ms. Nishat Intezar, argued that the Applicant has been falsely implicated and that the allegations contained in the FIR are wholly concocted. It was contended that although the Applicant is shown to have been apprehended from a crowded public place on 09.11.2024, the prosecution has not associated a single independent witness either to the arrest or to the alleged recovery. According to learned counsel, this omission casts serious doubt on the fairness of the investigation and renders the alleged seizure highly suspicious.

5. Learned counsel for the Applicant further submitted that the recovery memo relied upon by the prosecution contains the FIR number, which, in the ordinary course of events, could not have been mentioned if the memo had truly been prepared at the spot, prior to lodging of the FIR. This discrepancy, it was urged, demonstrates that the documents have been ante-dated and fabricated to support a false case. 1st Bail Application No.388 of 2025, Kapil alias Vikki alias Shankat vs. State of Uttarakhand - 2 Ashish Naithani J.

6. It was next contended by learned counsel for the Applicant that the mandatory safeguards prescribed under the NDPS Act were not adhered to at the time of arrest and seizure. In particular, the applicant was not afforded his statutory rights during the search, and there is nothing to suggest that the search and seizure proceedings were conducted in strict compliance with the law. Learned counsel emphasized that non-compliance with these safeguards vitiates the entire prosecution case. Learned counsel further submitted that nothing incriminating was ever recovered from the possession of the applicant and that the recovery shown in the FIR has been planted.

7. Learned counsel for the Applicant also highlighted that the Applicant is a permanent resident of Rudrapur, District Udham Singh Nagar, and has no previous criminal antecedents. It was urged that the Applicant has been in custody since 09.11.2024, and the trial is likely to take considerable time. It was argued that prolonged incarceration at this stage would cause irreparable hardship and is not justified in law. Learned counsel assured that the Applicant is ready to furnish adequate bail bonds and will abide by all conditions that the Court may impose.

8. On the other hand, learned Deputy A.G.A., K.S. Bohra, appearing for the State, vehemently opposed the bail application. He submitted that the recovery of 105 injections, including Buprenorphine and Diazepam, constitutes a serious offence under the NDPS Act and squarely attracts its penal provisions. According to learned Deputy A.G.A., such substances have grave implications for public health, and the menace of drug abuse cannot be lightly dealt with. It was urged that 1st Bail Application No.388 of 2025, Kapil alias Vikki alias Shankat vs. State of Uttarakhand - 3 Ashish Naithani J. the legislature has consciously imposed stringent conditions for the grant of bail in cases involving commercial quantities under the NDPS Act, and the Court must apply the mandate of Section 37 in its true spirit.

9. Learned deputy A.G.A. further submitted investigation records and documents annexed to the counter affidavit substantiate the prosecution version. It was argued that the mention of the FIR number in the inventory memo cannot be treated as a fatal infirmity and, at best, is a curable irregularity. Learned deputy A.G.A. stressed that the trial court has already considered all these aspects and, by a reasoned order dated 09.12.2024, rejected the Applicant’s plea for bail. He urged that no fresh ground has been made out before this Court, warranting interference with the order of the learned Special Judge.

10. Heard learned counsel for the Parties and perused the records.

11. The case of the state is founded upon the alleged recovery of 28 injections of Buprenorphine, 27 injections of Diazepam and 50 injections of Avil, totalling 105 injections, from the possession of the Applicant on 09.11.2024. The seizure is claimed to have been effected at about 6:12 p.m. from a public place within the jurisdiction of Police Station Rudrapur, and the FIR was lodged shortly thereafter at 6:30 p.m. 1st Bail Application No.388 of 2025, Kapil alias Vikki alias Shankat vs. State of Uttarakhand - 4 Ashish Naithani J.

12. The primary submission advanced on behalf of the Applicant is that the alleged recovery itself is doubtful since it was effected from a crowded public place, yet not a single independent witness was associated. The prosecution does not dispute this aspect. The Hon’ble Supreme Court has repeatedly held that while non- association of independent witnesses is not in itself fatal, it certainly requires the Court to scrutinize the prosecution case with greater care, particularly when the seizure is of a serious nature under the NDPS Act (Megha Singh v. State of Haryana, (1996) 11 SCC 709).

13. Another significant circumstance pressed by learned counsel for the Applicant is that the inventory memo relied upon by the prosecution contains the FIR number. On the face of it, this appears incongruous, for if the memo was indeed prepared contemporaneously at the spot of seizure, the FIR number could not have been available until after the FIR was registered. This anomaly prima facie casts doubt on the genuineness and spontaneity of the seizure proceedings.

14. At this juncture, it is pertinent to consider the statutory embargo under Section 37 of the NDPS Act. The provision, as interpreted in Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798, lays down twin conditions which must be satisfied before bail can be granted in cases involving commercial quantity: first, that the Court must be satisfied there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and second, that the accused is not likely to commit any offence while on bail. Both 1st Bail Application No.388 of 2025, Kapil alias Vikki alias Shankat vs. State of Uttarakhand - 5 Ashish Naithani J. conditions are cumulative and must co-exist. The expression “reasonable grounds” has been judicially interpreted to mean something more than prima facie grounds but less than proof of guilt, requiring substantial probable cause for believing the accused is not guilty.

15. Applying this standard, it emerges from the record that there are substantial circumstances casting doubt on the prosecution's version, namely, the absence of independent witnesses, the suspicious mention of the FIR number in the seizure documents, and the contention of non-compliance with statutory safeguards. These factors cumulatively persuade this Court that reasonable grounds exist, at least at this stage, to believe that the Applicant may not be guilty of the offence alleged.

16. As regards the second limb of Section 37, there is no material to suggest that the Applicant has any previous criminal antecedents or that he is likely to indulge in similar activity if enlarged on bail. He is a permanent resident of Rudrapur, District Udham Singh Nagar, and his father has come forward to furnish sureties. Thus, this Court is satisfied that the second requirement of Section 37 is also fulfilled.

17. The Court is conscious of the serious nature of offences under the NDPS Act and the menace posed to society. At the same time, the liberty of an undertrial cannot be curtailed indefinitely when 1st Bail Application No.388 of 2025, Kapil alias Vikki alias Shankat vs. State of Uttarakhand - 6 Ashish Naithani J. glaring infirmities exist in the prosecution case. The Hon’ble Supreme Court in Sanjay Chandra v. CBI, (2012) 1 SCC 40, reiterated that the object of bail is to secure the presence of the accused at trial and that prolonged pre-trial incarceration should not be resorted to as a measure of punishment. The observations therein squarely apply to the present case, where the Applicant has been in custody since 09.11.2024 and the trial is not likely to conclude in the near future.

18. Having considered the facts and the law applicable, and bearing in mind the safeguards contained in Section 37 of the NDPS Act, this Court is of the considered opinion that the Applicant has made out a case for the grant of bail. ORDER In view of the discussion made hereinabove, this Court finds merit in the present bail application. Accordingly, the bail application is allowed. Let the Applicant, Kapil alias Vikki alias Shankat, be released on bail in connection with FIR No. 563 of 2024, Police Station Rudrapur, District Udham Singh Nagar, under Sections 8/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985, on his furnishing a personal bond and two reliable sureties in the like amount to the satisfaction of the Court concerned. Arti ARTI SINGH DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=487ed955e722ba65aab55409e686c12fb83a19325e8b66890fbee418e7b69c0d, postalCode=263001, st=UTTARAKHAND, serialNumber=26DC90E00D839E3E8714131F235087D2D87E133C57E7F4A7B2E734BE2521F982, cn=ARTI SINGH ___________________ ASHISH NAITHANI, J. Dt: 20.09.2025 1st Bail Application No.388 of 2025, Kapil alias Vikki alias Shankat vs. State of Uttarakhand - 7 Ashish Naithani J.