Shahanzar v. State of Uttarakhand

connection with FIR No.32 of 2024, registered at Police Station Doiwala, District Dehardun, under Sections 8 and 22 of Narcotic Drugs and Psychotropic Substances (hereinafter referred N.D.P.S. Act).

2. Heard Mr. Navneet Kaushik, learned counsel for applicant and Mr. K.S. Bora, learned Deputy Advocate General assisted by Mr. J.P. Kandpal, learned Brief Holder for the State.

3. As per first information report it is alleged that on 30.01.2024 at about 12:30 p.m. police party was carrying out the routine checking and upon an information of the informant (whose identity and name has not been disclosed), the police team was informed that an Alto car was involved in some illegal activities. The police team after having spotted the said Alto car surrounded it and asked the driver to come out of the car. 1 2

4. It is contended that although a heavy amount of contraband drug, namely, “tramadole capsules” were recovered from the car of the applicant/accused. The alleged contraband recovered i.e. “tramadole capsules” were 3200 in number. The alleged recovery, shown to be made by the police officials, was at a public place, still no public witnesses were called neither any attempt was made to them for evidence. It is clear that entire prosecution story seems to be false and lacks credibility.

5. It is contended that Arresting Officer did not prepare any memo of information that has to be given to the applicant/accused in writing as per requirement under Section 50 of the N.D.P.S. Act. No documentation was made that could cover the requirements of Section 42(2) of the N.D.P.S., which is extracted herein below:- “(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.”

6. This indicates that in the present matter regarding the arrest and seizure no information was sent to the superior officers within the stipulated time.

7. It is also contended that the mandatory provisions of Section 50 of N.D.P.S. Act were also not complied with. This aspect was stressed upon in favour of the applicant that in the present matter, the mandatory provisions of Section 52(A)(2) of N.D.P.S. Act calls for the inventory of contraband so seized to be conducted. Section 52(A)(2) is extracted below:- 3 substances, “[52A. Disposal of seized narcotic drugs and psychotropic substances.—3 [(1) The Central Government may, having regard theft, the hazardous nature, vulnerability substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.] substances controlled (2) Where any 4 [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such 4 [narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the 4 [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the 4 [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of— (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such magistrate, photographs of 5 [such drugs, substances or conveyances] and certifying such photographs as true; (c) allowing to draw representative samples of such drugs or substances, in the presence of such magistrate and certifying the correctness of any list of samples so drawn.”

8. During the arguments, learned counsel for the applicant also stressed upon mandatory provisions of Section 55 of the N.D.P.S. Act and commented that though the provisions of “tramadole capsules” merely directory in nature. Section 55 of the N.D.P.S. Act, is extracted below:- “55. Police to take charge of articles seized and delivered.—An officer-in-charge of a police station shall take 4 charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.”

9. It is clear by the aforesaid provisions that contraband, alleged to have been seized, should be in custody of the officer In-charge of police station and he should have taken charge of the same, keeping it in safe custody, pending the orders of the Magistrate. But in the present matter, the contraband was seized (tramadole capsules) were handed over to the Drug Inspector and there is no explanation as to why it was done so.

10. The role of Drug Inspectors stems primarily from the Drugs and Cosmetics Act, 1940, not the NDPS Act. Therefore, a Drug Inspector cannot independently handle the case under the NDPS Act unless he is an empowered officer under Section 42 and the case originated with him.

11. Learned counsel for the applicant in view of the aforesaid contention submits that the applicant/accused is in judicial custody since his arrest on 30.01.2024 and if he is enlarged on bail and he will abide by all the conditions as imposed by this Court.

12. Learned State Counsel strongly opposed the bail application and contended that that the contraband known as “tramadole capsules” have been seized in great quantity applicant/accused and all the basic formalities as mandatory and directory provisions of N.D.P.S. Act have been followed. 5 Therefore, there is no ground for bail. A large quantity, commercial quantity of the contraband was recovered, hence bail, hence bail application should be rejected.

13. After hearing the learned counsel for the parties and perusal of the record and without going into the merits of the case, at this juncture, this Court finds it to be a fit case for bail; firstly as certain directory and mandatory provisions of the N.D.P.S. Act were not followed, mainly regarding the inventory of the contraband so seized from the applicant/accused and seizure and custody of the contraband, though the inventory is not made on behalf of the search team. It had been documented and forwarded to learned trial court by the Drug Inspector, District Dehradun on 08.02.2024. Moreover, FSL report has not been placed before the court that would determined that the articles so alleged to have been seized infact “tramadole capsules” Drug or something else.

14. Accordingly, the bail application is allowed. Let applicant-Shahanzar be released on bail on his furnishing a personal bond and furnishing two reliable sureties of the like amount to the satisfaction of court concerned. (Ashish Naithani, J.)

26.03.2025 Arti ARTI SINGH Digitally signed by 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