Nandan Singh v. St at e of Ut t arakhand

Heard Mr. B.M. Pingal, learned counsel for t he applicant and Mr. K.S. Bora, learned Deput y Advocat e General for t he St at e and perused t he record.

3. The m ain cont ent ion on behalf t he applicant is t hat proper com pliance, regarding t he sam ple specim en, t hat is t o be t aken from t he cont raband alleged t o be seized, has not been properly followed. I t is cont ended t hat , t hough t he cont raband, nam ed as Charas, which has been alleged t o have been seized from t he applicant , is 2 above com m ercial quant it y, i.e. 3 kilos and 14 gram s, and t hat at t he t im e of t he seizure it is said t o be packed in t hree bags, and as per t he recovery m em o, t he alleged cont raband, nam ed Charas, is in shape of st icks ( bat t i) and as per law, sam pling in such cases should be done by t aking sm all quant it ies from each port ion of t he cont raband; herein in t his case, t he sam ples are various in num ber, and t hat t oo in t he shape of st icks, and in colloquial language, it is known as bat t i. Yet , it is evident , as per t he records of t he St at e, t hat only 100 gram s of t he seized cont raband has been chosen for sam pling i.e. not enough, and violat es t he m andat es of sam pling, as providing under t he NDPS Act .

4. I t is also cont ended t hat as per m andat ory provisions of Sect ion 52( A) of t he NDPS Act , com pliance is not m et wit h.

5. The applicant languishing j ail since

12.09.2024.

6. Sect ion 52 ( A) of t he NDPS Act reads as under: t o ( 1) ot her st orage su b st a n ce s - “ 5 2 A D i sp o sa l o f se i z e d n a r co t i c d r u g s a n d The p sy ch o t r o p i c Cent ral Governm ent m ay, having regard t he hazardous nat ure, vulnerabilit y t o t heft , subst it ut ion, const raint of proper relevant considerat ion, respect of any narcot ic drugs, psychot ropic subst ances, cont rolled subst ances or conveyances, by not ificat ion t he Official Gazet t e, specify such narcot ic drugs, psychot r opic subst ances, cont rolled subst ances or conveyance or class of narcot ic drugs, class of psychot ropic subst ances, class of cont rolled subst ances or conveyances, which shall, as soon as m ay be aft er t heir seizure, be disposed of by such officer and in such m anner as t hat Governm ent m ay, from t im e t o t im e, det erm ine aft er following t he procedure hereinaft er specified. ( 2) Where any narcot ic drugs, psychot ropic subst ances, cont rolled subst ances or conveyances has been seized 3 t o t he narcot ic invent ory ident it y of t he correct ness of and forwarded t o t he officer - in - char ge of t he nearest police st at ion or t o t he officer em powered under sect ion 53, t he officer referred t o in sub - sect ion ( 1) shall prepare drugs, psychot ropic subst ances, cont rolled subst ances or conveyances cont aining such det ails relat ing t o t heir descript ion, qualit y , quant it y, m ode of packing, m arks, num bers or such ot her ident ifying part iculars of t he narcot ic drugs, psychot ropic subst ances, cont rolled subst ances or conveyances or t he packing in which t hey are packed, count ry of origin and ot her part iculars as t he officer referred t o in sub - sect ion ( 1) m ay consider t he narcot ic drugs, relevant psychot ropic subst ances, cont rolled subst ances or conveyances in any proceedings under t his Act and m ake an applicat ion, t o any Magist rat e for t he purpose of: ( a) cert ifying prepared; or t he presence of such m agist rat e, t aking, ( b) phot ographs of such drugs, subst ances or conveyances and cert ify ing such phot ographs as t rue; or ( c) allowing t o dr aw represent at ive sam ples of such drugs or subst ances, in t he presence of such m agist rat e and cert ifying t he correct ness of any list of sam ples so drawn. ( 3) Where an applicat ion is m ade under sub - sect ion ( 2) , t he Magist rat e shall, as soon as m ay be, allow t he applicat ion. ( 4) Not wit hst anding anyt hing cont ained in t he I ndian Evidence Act , 1872 ( 1 of 1972) or t he Code of Crim inal Procedure, 1973 ( 2 of 1974) , every court t rying an offence under t his Act , shall t reat t he invent ory, t he phot ographs of nar cot ic drugs, psychot ropic subst ances, cont rolled subst ances or conveyances and any list of sam ples drawn under sub - sect ion ( 2) and cert ified by t he Magist rat e, as prim ary evidence in respect of such offence.” invent ory so t he

7. Anot her cont ent ion raised on behalf of t he applicant is t hat in t he present m at t er, t he cont raband, so alleged t o have been seized from t he applicant - Nandan Singh, had been seized on 10.09.2024, yet t ill t oday, i.e. even aft er passing of six m ont hs from t he dat e of seizure of t he cont raband, t he FSL report is yet t o be t aken under record.

8. On t he ot her hand, learned Deput y Advocat e General for t he St at e has vehem ent ly opposed t he present 4 bail applicat ion, cont ending t hat t he offense com m it t ed by t he applicant is grave and falls wit hin t he cat egory of com m ercial quant it y under t he NDPS Act , 1985, t hereby at t ract ing st rict liabilit y st ringent condit ions under Sect ion 37 of t he Act . I t is subm it t ed t hat 3 kilos and 14 gram s of Charas was recovered t he applicant 's possession, and such a huge quant it y of cont raband has severe societ al im plicat ions, part icularly concerning drug t rafficking and subst ance abuse issues.

9. Aft er hearing learned counsel for t he part ies and on t he perusal of t he record, at t he face of it , it is evident t hat t ill dat e, t he FSL report has not been filed. So it cannot be said wit h cert aint y, t hat t he alleged cont raband, which has allegedly been seized from t he possession of applicant / accused on 12.09.2024, is charas, as defined in Sect ion 2( iii) ( a) of t he NDPS Act . As per Sect ion 2( iii) ( a) of t he NDPS Act , charas is defined as : “ ( iii) “ cannabis ( hem p) ” m eans— is, t hat t he separat ed form , whet her ( a) charas, what ever crude or purified, obt ained from t he cannabis plant and also includes resin known as concent rat ed preparat ion and hashish oil or liquid hashish; ” resin,

10. The not ificat ion specifying sm all quant it y and com m ercial quant it y, as per sub- clause iv( a) and XXI I I ( a) of Sect ion 2 of t he Act is m ent ioned in Serial No. 23 of t he Table. The sm all quant it y of charas is m ent ioned as 100 gram s, whereas com m ercial quant it y is m ent ioned as 1 kilos.

11. Since t he punishm ent st ipulat ed under NDPS Act depends on t he quant it y of t he cont raband, it is im perat ive t hat t he weight of t he cont raband m ust be specific. 5 Sect ion 20 of t he NDPS Act deals wit h punishm ent for cont ravent ion in relat ion t o cannabis plant and cannabis. Sect ion 20, insofar as it is relevant , t he sam e reads as under: “ 2 0 . Pu n i sh m e n t i n r e l a t i o n t o ca n n a b i s p l a n t a n d ca n n a b i s.—Whoever, in cont ravent ion of any provision of t his Act or any rule or order m ade or condit ion of licence grant ed t hereunder,— co n t r a v e n t i o n f o r ( a) …… ( b) ….. ( i) ….. ( ii) where such cont ravent ion relat es t o sub- clause ( b) ,— ( A) and involves sm all quant it y, w it h rigorous im prisonm ent for a t erm which m ay ext end t o one year, or wit h fine which m ay ext end t o t en t housand rupees, or wit h bot h; ( B) and involves quant it y lesser t han com m ercial quant it y but great er t han sm all quant it y, wit h rigorous im prisonm ent for a t erm which m ay ext end t o t en years, and wit h fine which m ay ext end t o one lakh rupees; ( C) and involves com m ercial quant it y, wit h rigorous im prisonm ent for a t erm which shall not be less t han t en years but which m ay ext end t o t went y years and shall also be liable t o fine which shall not be less t han one lakh rupees but which m ay ext end t o t wo lakh rupees: Provided t hat t he court m ay, for reasons t o be recorded in t he j udgm ent , im pose a fine exceeding t wo lakh rupees.”

12. That is why it is essent ial, first ly t o est ablish t he weight of t he cont raband so seized. Secondly, t he m andat ory provisions of seizure and search m ust be followed. Thirdly, sam pling of t he cont raband m ust be done in such a m anner t hat it can be said t hat no part of t he seized cont raband is left wit hout procedure for forensic t est ing.

13. While t he offense alleged against t he applicant is of a serious nat ure, it is well set t led t hat bail cannot be 6 denied solely on t he gravit y of t he allegat ions, part icularly when serious doubt s exist s regarding t he St at e's abilit y t o prove it s case at t rial.

14. I n t he present m at t er, when at t he face of it , t he Court cannot assess and evaluat e t he chem ical com posit ion, or t he result of t he cont raband so seized i.e. charas, and in t he absence of FSL report , t he grounds for bail are felt t o be sufficient at t his j unct ure.

15. I n view of t he considerat ions m ent ioned above, t his Court finds t hat t he applicant has m ade out a prim a facie case for t he grant of bail. Consequent ly, t he bail applicat ion is allowed.

16. Let t he applicant – Nandan Singh be released on bail on his execut ing a personal bond and furnishing t wo reliable suret ies, each t he like am ount , t o t he sat isfact ion of t he court concerned. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ A SH I SH N A I TH A N I , J. Dt : 26.03.2025 Shiksha SHIKSHA BINJOLA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2c24 b5aa08b09c12f21822fbd40bf639b1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A542 D7FF0A9BED00E67B5283D205F18FE29BDF5DD9 , cn=SHIKSHA BINJOLA