(Under Section 439 of the Code of Criminal Procedure) Jaan Alam v. Presence

Judgment

1. This bail application under Section 439 of the Code of Criminal Procedure has been filed on behalf of the applicant, Jaan Alam, seeking bail in connection with FIR No. 132 of 2024, registered at Police Station Kotwali Manglour, District Haridwar, for offences under Sections 8/21(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act').

According to the FIR, on 27.02.2024 at around 20:40 hours, the police team led by Sub-Inspector Vikas Rawat was patrolling the area near Gurukul Narsan Barrier when they observed a Swift Dzire vehicle bearing registration no. UK-14J-4548 coming from Purkaji, Muzaffarnagar. Upon seeing the police party, the vehicle attempted to take a U-turn, raising suspicion.

3. The vehicle was intercepted, and upon inquiry, the driver identified himself as the applicant, Jaan Alam. A search of the vehicle led to the alleged recovery of 257 grams of smack (excluding packaging) concealed in a cavity near the gear lever. 1

4. The applicant was arrested on the spot, and the vehicle was seized under Section 60 of the NDPS Act.

5. Heard the learned counsels for the parties and perused the records.

6. The applicant’s learned counsel has contended that no recovery was made from the personal possession of the applicant and that the alleged contraband was recovered from the vehicle. It is submitted that, despite the incident occurring in a public place, no independent public witness was associated with the recovery process.

7. It is further argued that no videography or photography was undertaken at the time of recovery, which, according to the applicant, casts a doubt on the fairness and transparency of the seizure proceedings.

8. The applicant has been in judicial custody since 28.02.2024 and is not a convict in any prior case. The FSL report is still awaited, and the trial is likely to take time.

9. On the other hand, the learned Brief Holder for the State has opposed the bail application and submitted that the alleged recovery amounts to a commercial quantity, thereby attracting the bar under Section 37 of the NDPS Act.

10. It is submitted that the recovery was effected from the vehicle, and not from the person of the applicant, and therefore, compliance with Section 50 of the NDPS Act was not required. 2

11. It is further argued that the applicant was previously involved in another NDPS case (Case Crime No. 24/2022, P.S. Shyampur), and is likely to misuse the liberty if released.

12. The existence of a criminal antecedent, by itself, cannot justify the denial of bail where procedural lapses and material irregularities are apparent on record.

13. At the outset, this Court notes with concern that the Forensic Science Laboratory (FSL) report has not yet been submitted in the present case. In prosecutions under the Narcotic Drugs and Psychotropic Substances Act, 1985, the FSL report constitutes the evidentiary cornerstone for establishing whether the substance allegedly recovered is, in fact, a narcotic drug or psychotropic substance as defined under the law.

14. In the present matter, where the prosecution alleges recovery of 'smack' from the vehicle driven by the applicant, the absence of any chemical analysis or conclusive laboratory confirmation substantially weakens the prosecution's case at this stage. Without the FSL report, the foundational requirement for invoking the rigours of the NDPS Act remains unfulfilled.

15. The FSL report, in NDPS matters, is not a mere formality but serves as a foundational element of the prosecution’s case. It is this report that confirms whether the seized material qualifies as a narcotic drug or psychotropic substance within the meaning of the Act. In its absence, the Court is deprived of a conclusive scientific basis to assess the nature of the contraband.

16. Courts have consistently acknowledged the evidentiary value of the FSL report. In Hanif Ansari v. State (NCT of Delhi), SLP 3 (Crl.) No. 15293 of 2023, the Hon’ble Supreme Court has referred to a larger bench the question whether failure to submit the FSL report along with the charge sheet renders the report incomplete for default bail under Section 167(2) CrPC read with Section 36A of the NDPS Act.

17. During the hearing of the said matter, the Hon’ble Court observed that the issue has far-reaching consequences for the liberty of the accused and the sanctity of procedure under criminal law. In particular, Justice Suryakant remarked on the irreversible prejudice that may result from continued incarceration without the core scientific evidence substantiating the offence.

18. While this Court does not opine on the larger issue referred for authoritative adjudication, the absence of the FSL report at this stage does weigh against the prosecution, especially where the applicant has already undergone substantial custody. The charge that the recovered substance is 'smack' remains unverified in the absence of chemical analysis, and this deficiency cannot be overlooked while considering the question of bail.

19. It is settled law that Section 50 of the NDPS Act applies only to personal searches and not to searches of vehicles, as held by the Hon’ble Supreme Court in State of Rajasthan v. Parmanand, (2014) 5 SCC 345.

20. The Court also takes note of the complete absence of any independent public witness, despite the alleged recovery having taken place in a public area. While it may not be a mandatory requirement, the presence of public witnesses lends credibility to seizure proceedings. Notably, no specific individual has been identified or named as having been approached to act as a witness. 4

21. Furthermore, videographic photographic documentation of the recovery has been produced, even though such technological means are readily available and widely used to reinforce transparency and procedural fairness. The combined effect of these omissions casts a shadow on the credibility of the recovery process.

22. Though the quantity allegedly recovered falls within the category of 'commercial quantity', thereby attracting the bar under Section 37 of the NDPS Act, this Court is equally bound to consider the applicant’s prolonged incarceration, the absence of direct personal recovery, the continued non-submission of the FSL report, and the overarching constitutional guarantee of personal liberty under Article 21 of the Constitution. The existence of a criminal antecedent, by itself, cannot justify the denial of bail where procedural lapses and material irregularities are apparent on record. ORDER In view of the above discussion, and without expressing any opinion on the merits of the case, this Court is of the opinion that the applicant has made out a case for the grant of bail. Accordingly, the bail application is allowed. Let the applicant, Jaan Alam, S/O Shamim, R/o 79, Raipur Pipal Gali, P.S. Bhagwanpur, District Haridwar, be released on bail in connection with FIR No. 132 of 2024, Police Station Kotwali Manglour, District Haridwar, under Sections 8/21(C) of the NDPS Act, on furnishing a personal bond of ₹50,000/- with two sureties of the like amount to the satisfaction of the court concerned, subject to the following conditions: (i) The applicant shall appear before the trial court as and when required; 5 (ii) The applicant shall not tamper with the evidence or influence any witness; (iii) The applicant shall not commit any offence while on bail. (iv) It is made clear that any observation made herein shall not be treated as a conclusive finding in the trial. NR/ (Ashish Naithani, J) Dated: 09th April, 2025 6