Rakesh Tiwari v. State of Uttarakhand

The first bail application was rejected by this Court vide order dated 24.02.2025, noticing that the recovery was of commercial quantity and the statutory bar under Section 37 NDPS Act operated. The second bail application bearing BA2 No. 126 of 2025 was rejected on

19.06.2025, wherein this Court considered the grounds of absence of vehicle logbook entries, the FIR number appearing in the inventory report, and absence of independent witnesses. These were found insufficient to displace the embargo of Section 37.

4. The third bail application now places reliance on minor omissions in the testimony of PW-4 (Head Constable) and seeks to revisit the earlier issues concerning the route chart and inventory preparation.

5. Learned counsel for the Applicant submits that subsequent to the rejection of the second bail application on 19.06.2025, certain developments have arisen in the course of trial which, according to him, materially alter the circumstances. Third Bail Application No. 46 of 2025 - Rakesh Tiwari v. State of Uttarakhand 2 Ashish Naithani J.

6. Attention is invited to the deposition of PW-4, Head Constable, who during cross-examination could not state with certainty the precise time at which the police party arrived at the place of recovery. It is argued that this omission in the testimony creates a serious dent in the prosecution’s version of the recovery proceedings and casts doubt on whether the police party was present at the relevant time.

7. It is further contended that the recovery proceedings, even if taken at face value, suffer from multiple infirmities which have not been appreciated earlier. Learned senior counsel emphasizes that no videography of the recovery was undertaken, although all officers were equipped with mobile phones, and no independent witnesses were associated despite availability in the locality. Reliance is placed on the cross-examination of PW-1 wherein he admitted that while efforts were said to have been made, no local resident ultimately agreed to join the recovery. According to the Applicant, the absence of such safeguards renders the recovery doubtful, particularly when it involves a commercial quantity. Third Bail Application No. 46 of 2025 - Rakesh Tiwari v. State of Uttarakhand 3 Ashish Naithani J.

8. Learned counsel the Applicant also reiterates that the inventory report which purports to have been prepared on the spot contains the FIR number, despite the FIR admittedly being registered subsequently. This, it is submitted, indicates that either the inventory was prepared later in time or interpolated, which goes to the root of the prosecution case. Learned Counsel for the Applicant asserts that the State’s explanation the FIR number was inserted subsequently in a different handwriting, is not convincing and only confirms tampering with the record.

9. In conclusion, it was urged that these factors cumulatively amount to fresh grounds which were not available or considered at the time of earlier applications. The Applicant submits light of developments, the rigour of Section 37 NDPS Act should be relaxed and the Applicant deserves to be enlarged on bail.

10. Per contra, learned Deputy Government Advocate for the State opposes the present application and submits that it is the third successive attempt by the Third Bail Application No. 46 of 2025 - Rakesh Tiwari v. State of Uttarakhand 4 Ashish Naithani J. Applicant to secure bail on grounds which have already been considered and rejected by this Court. It is pointed out that the issue regarding absence of independent witnesses, lack of videography, and the presence of FIR number in the inventory report formed the core of the second bail application, which was rejected on merits vide order dated 19.06.2025.

11. In paragraph 22 of the said order, this Court clearly held that “the grounds raised, though relevant for trial, do not constitute substantial change circumstances so as to overcome the rigours of Section

37.” The present application, it is submitted, is a mere repetition under the garb of highlighting minor omissions in evidence.

12. As regards PW-4’s inability to mention the exact time of arrival of the police party, it is contended that such omission is neither fatal nor unusual. Witnesses deposing after intervals cannot be expected to recall every minute detail with mathematical precision. What is material is the consistency across all prosecution witnesses, including PW-1 and PW-2, who Third Bail Application No. 46 of 2025 - Rakesh Tiwari v. State of Uttarakhand 5 Ashish Naithani J. have categorically affirmed the presence of the police team and the recovery of the contraband. A minor lapse in recollection of time cannot undermine the recovery, particularly when it stands corroborated by the case diary and the statements of other witnesses.

13. On the issue of inventory, learned counsel for the State reiterates that the FIR number was added subsequently in a different handwriting upon return to the police station, as explained earlier. This supplementation does not invalidate the preparation of the inventory on the spot, nor does it constitute fabrication. The defence had the opportunity during trial to challenge the preparation of the inventory but no substantial contradiction has emerged from cross- examination so far.

14. The State further emphasizes that the recovery involves 1 kg 181 grams of Charas, which is of commercial quantity. The FSL report confirms the seized substance to be Charas. In such cases, the statutory bar under Section 37 NDPS Act mandates that bail can only be granted if the Court is satisfied both that the Third Bail Application No. 46 of 2025 - Rakesh Tiwari v. State of Uttarakhand 6 Ashish Naithani J. Applicant is not prima facie guilty and that he is not likely to commit an offence if released on bail. No material is placed on record to satisfy either of these conditions.

15. Learned Counsel for the State also submitted that the trial is progressing expeditiously and five prosecution witnesses have already been examined. If released on bail, there is every likelihood that the Applicant may influence the remaining witnesses or tamper with the evidence. Reliance is placed on the law laid down in the case of “Vihaan Kumar v. State of Uttarakhand”, wherein the Hon’ble Supreme Court has that successive bail applications cannot be entertained unless a substantial change circumstances is demonstrated. Mere cosmetic variations or reliance on minor omissions do not amount to such change.

16. In view of above, learned counsel for the State prays that the third bail application be rejected as devoid of merit.

17. Heard learned counsel for the Parties and Third Bail Application No. 46 of 2025 - Rakesh Tiwari v. State of Uttarakhand 7 Ashish Naithani J. perused the records.

18. The scope of a third bail application narrowly circumscribed, being confined to whether any substantial change in circumstances has arisen since the rejection of earlier bail applications.

19. The first bail application was rejected by this Court on 24.02.2025 after noting that the recovery involved a commercial quantity of contraband and that the embargo under Section 37 NDPS Act operated. The second bail application was rejected by a reasoned order dated 19.06.2025, wherein this Court, after examining the grounds regarding absence of vehicle route chart, FIR number appearing in the inventory, and lack of independent witnesses, held that these aspects, though relevant for trial, did not constitute a substantial change in circumstances to warrant bail.

20. The first ground now urged is that PW-4, Head Constable, during cross-examination, could not state with precision the time at which the police party reached the spot. This Court is of the considered view that such lapse in recollection does not materially affect the Third Bail Application No. 46 of 2025 - Rakesh Tiwari v. State of Uttarakhand 8 Ashish Naithani J. substratum of the prosecution case. Witnesses examined in trial after passage of time cannot be expected to recall exact timings with mathematical accuracy. What is material is that the deposition of PW-4 remains consistent with other witnesses regarding the occurrence, the seizure, and the presence of the police team. The absence of exact timing, in isolation, cannot be treated as a new circumstance warranting bail.

21. The second ground pertains to the absence of videography of the recovery and failure to secure independent witnesses. These arguments had already been advanced in the earlier bail proceedings and were dealt with by this Court in paras 19–20 of the order dated

19.06.2025

22. The Court had then held that while independent corroboration videography desirable, they are not statutory requirements under the NDPS Act, and absence thereof does not, by itself, vitiate the recovery when supported by consistent witness testimony. The present application only seeks to re- agitate the same grounds, which cannot be entertained Third Bail Application No. 46 of 2025 - Rakesh Tiwari v. State of Uttarakhand 9 Ashish Naithani J. afresh in a third bail plea.

23. The next contention relates to the FIR number appearing in the inventory report despite the FIR having been lodged later in time. This was specifically considered in paragraph nos. 18 & 19 of the order dated 19.06.2025, where the State’s explanation that the FIR number was inserted subsequently in a different handwriting was accepted as a supplementation rather than fabrication. No new material has been placed before this Court to disturb that conclusion. The argument, therefore, stands concluded and cannot form the basis of a fresh bail prayer.

24. The reliance placed on “Rao Uvesh Ali v. State of Uttarakhand” and “Manoj Singh Rawat v. State of Uttarakhand” is also misplaced. Both those cases turned on foundational infirmities such as arrest memos and recovery documents bearing FIR numbers prior to registration, coupled with unexplained absence of police records. In the present case, however, the charge sheet has been filed, five prosecution witnesses have already been examined, and the FSL report confirms the seized Third Bail Application No. 46 of 2025 - Rakesh Tiwari v. State of Uttarakhand 10 Ashish Naithani J. substance to be Charas. The factual matrix therefore does not admit of parity with the cited precedents.

25. In light of the above discussion, and considering that the recovery is of commercial quantity, the statutory bar under Section 37 NDPS Act continues to operate. The Applicant has not established that he is prima facie not guilty, nor that he is unlikely to commit an offence if released on bail. The present application is thus devoid of merit. ORDER In view of the foregoing discussion and the legal position governing successive bail applications under Section 439 CrPC, this Court finds that the grounds raised in the present, third bail application are either repetitions of arguments already considered and rejected, or minor omissions in witness testimony which do not amount to a substantial change in circumstances. Accordingly, the third bail application is, rejected. Akash AKASH Digitally signed by AKASH DN: c=IN, o=HIGH COURT OF UTTARAKHAND, 2.5.4.20=dae2472c001d56469ea76fc0caa68f48ef73518c148d14056 6ab1e26f9cbe61d, postalCode=263001, st=Uttarakhand, serialNumber=27096a1625377537a487dee49224c891823fc6a0334 628b21e516047ed4f22f7, cn=AKASH (Ashish Naithani, J.)

22.08.2025 Third Bail Application No. 46 of 2025 - Rakesh Tiwari v. State of Uttarakhand 11 Ashish Naithani J.