Rakesh Tiwari v. State of Uttarakhand

The first bail application was rejected by this Court vide order dated 24.02.2025. The present application is confined to fresh grounds that have arisen during the trial and investigation.

3. Learned counsel for the Applicant submits that, post the rejection of the earlier bail application, certain material inconsistencies have emerged that go to the root of the prosecution's story.

4. It is submitted that, upon obtaining information under the Right to Information Act, it has come to light that no route chart was found in the Logbook of the official vehicle allegedly used in the recovery. Further, the Case Diary produced by the State does not record Second Bail Application No.126 of 2025, “Rakesh Tiwari Vs State of Uttarakhand”- 1 Ashish Naithani J. the time of departure, which undermines the assertion that the police team was present at the spot at the relevant time.

5. It is further urged that the inventory report, which purports to have been prepared on the spot, bears the FIR number despite the FIR being registered later. This, it is contended, raises a serious doubt about the genuineness and timing of the recovery.

6. The Applicant also refers to the testimony of PW-1, the complainant and recovery officer, who admitted during cross- examination that all officers present had mobile phones, yet no attempt was made to record the recovery proceedings through video or to secure independent witnesses from the locality, although efforts were allegedly made.

7. Learned counsel places reliance on Rao Uvesh Ali v. State of Uttarakhand and Manoj Singh Rawat v. State of Uttarakhand, where bail was granted in cases involving procedural irregularities, including post-facto FIR entries in recovery or arrest documents. It is submitted that the present case is on a firmer footing, given the absence of proof of vehicle movement and contemporaneous documentation.

8. The Applicant submits that given these fresh developments, the bar under Section 37 of the NDPS Act ought to be read down, and the Applicant be released on bail pending trial.

9. Learned Additional Government Advocate, appearing on behalf of the State, opposes the second bail application and submits that no fresh ground has been raised which would justify a departure from the earlier rejection order dated 24.02.2025.

10. It is submitted that the vehicle log and route chart issue is being misrepresented. The State clarifies that the Logbook maintained at the Police Line primarily records repair and maintenance details, Second Bail Application No.126 of 2025, “Rakesh Tiwari Vs State of Uttarakhand”- 2 Ashish Naithani J. whereas movement of police vehicles is entered in the Case Diary . The entry dated 06.03.2024 in the Case Diary of Bolero vehicle No. UK07- GA-2117 clearly reflects the use of the vehicle for the said patrolling duty.

11. As to the absence of departure time in the Case Diary, it is contended that such omission does not by itself vitiate the prosecution case, particularly when five prosecution witnesses, including the complainant, recovery witnesses, and the investigating officer, have uniformly deposed in support of the recovery.

12. Regarding the FIR number appearing in the inventory report, the learned AGA submits that the number was recorded subsequently in a different handwriting after the FIR was lodged. The initial preparation of the inventory was done on the spot and was thereafter supplemented in accordance with procedure. This, it is urged, does not amount to fabrication or invalidate the recovery.

13. The State emphasizes that the contraband recovered is of commercial quantity, the FSL report confirms it to be Charas, and the Applicant was apprehended red-handed. The statutory embargo under Section 37 of the NDPS Act continues to apply. No material has been brought to show that the Applicant is not prima facie guilty or that he will not commit an offence if released.

14. It lastly submitted is proceeding expeditiously. Five prosecution witnesses have already been examined, and if the Applicant is released, there exists a serious likelihood that he may influence remaining witnesses or tamper with the evidence. The second bail application is therefore liable to be rejected.

15. Heard learned counsel for the parties and perused the records. Second Bail Application No.126 of 2025, “Rakesh Tiwari Vs State of Uttarakhand”- 3 Ashish Naithani J.

16. The present application is being examined solely on the limited scope available in a second bail application, namely, whether any new ground has emerged after rejection of the first application, which materially alters the circumstances warranting reconsideration.

17. The principal fresh ground urged by the Applicant is that no route chart or departure time is recorded in the Logbook or Case Diary of the official Bolero vehicle allegedly used by the police team on the recovery date. In response, the State has placed on record entries from the Case Diary showing that the vehicle was indeed issued for duty on

06.03.2024. While it is true that the departure time is not explicitly mentioned, the mere absence of that column, without more, cannot by itself be treated as fatal to the prosecution case, particularly when multiple prosecution witnesses have deposed to the presence of the vehicle and have consistently supported the recovery testimonies.

18. The second ground urged is that the inventory report, purportedly prepared at the spot, contains the FIR number even though the FIR was admittedly lodged thereafter. This discrepancy is explained by the State as a procedural supplementation, whereby the FIR number was added in a different handwriting upon return to the police station.

19. The fact that the FIR number appears in the inventory report, though not ideal, does not by itself negate the recovery or render the preparation of the inventory a nullity, unless it is shown that the inventory was fabricated in its entirety, which is not borne out from the trial evidence so far. No objection appears to have been raised by the defence during the deposition of PW-1 regarding the timing of inventory preparation.

20. The third ground pertains to the absence of independent witnesses and the lack of videography of the recovery. PW-1 has stated Second Bail Application No.126 of 2025, “Rakesh Tiwari Vs State of Uttarakhand”- 4 Ashish Naithani J. that efforts were made to secure local witnesses, but none agreed to participate. While the non-availability of independent corroboration is always a matter for judicial scrutiny, it is not an inflexible requirement under the NDPS Act, especially in cases of chance recovery. The absence of videography is regrettable but not mandatory under the statute. The evidentiary value of the recovery cannot be discarded merely for want of technological documentation unless the recovery itself appears doubtful from the material on record, which, at this stage, it does not.

21. As regards the applicability of Rao Uvesh Ali v. State of Uttarakhand and Manoj Singh Rawat v. State of Uttarakhand, it is important to note that each case turns on its own facts. In both cited cases, the inconsistencies were not merely procedural but foundational such as the presence of FIR number on arrest memos allegedly prepared before registration of FIR, or the absence of any route chart coupled with unexplained movement of the police team. In the present case, the record reflects substantial compliance with the statutory mandate, including filing of charge sheet, examination of five witnesses, and confirmation of the contraband by FSL. The case law cited does not ipso facto create a parity that would entitle the present Applicant to relief.

22. Having regard to the nature of the recovery (commercial quantity), the statutory bar under Section 37 of the NDPS Act continues to operate. The Court is not satisfied that the Applicant has demonstrated a prima facie case of innocence or that he is not likely to commit any offence if released. The grounds raised, though relevant for trial, do not constitute substantial change in circumstances so as to overcome the rigours of Section 37 at this stage. Second Bail Application No.126 of 2025, “Rakesh Tiwari Vs State of Uttarakhand”- 5 Ashish Naithani J. ORDER In view of the foregoing discussion and the legal position governing the grant of bail in cases involving commercial quantity under the NDPS Act, this Court is of the considered opinion that the Applicant has not made out any fresh ground of such significance that would warrant a departure from the earlier rejection order. Accordingly, the second bail application is rejected. (Ashish Naithani J.)

19.06.2025 SB Second Bail Application No.126 of 2025, “Rakesh Tiwari Vs State of Uttarakhand”- 6 Ashish Naithani J.