Mohd. Faim v. State of Uttarakhand

2. As reflected in the FIR and supporting documents, alleges that on 05.05.2024 at approximately 16:36 hours, SI Shankar Nayal along with his police personnel were on duty to maintain peace and order, prevent crime, and check suspicious persons and vehicles in the area. While proceeding through the lane of Faizan Medical, they 1 reached ahead of the main gate of the railway station in their private vehicles. It is alleged that they observed a person coming from the direction of Rajpura. Upon noticing the police, this individual allegedly looked back and began walking at a quicker pace while holding a blue handbag in his right hand. Finding this behavior suspicious, the police personnel apprehended the individual who identified himself as Mohd. Faim, the present applicant.

3. Upon searching the blue handbag, they discovered 21 injections of Prenogesic (Buprenorphine) 2 ml each and 18 injections of Avil (Pheniramine Maleate) 10 ml each contained within a black plastic polythene bag.

4. Subsequent to the arrest, recovery memo was prepared, and other formalities under the NDPS Act were completed. The seized substances were produced before the learned court below, samples were drawn, and sent to the Regional Forensic Science Laboratory (RFSL), Rudrapur. As per the FSL report dated 29.06.2024, the presence of Buprenorphine was confirmed in exhibits 01 to 05, and Pheniramine Maleate was confirmed in exhibits 06 to 07. After completing the investigation, a charge sheet was filed on 23.08.2024 under the aforementioned sections against the applicant.

5. Heard learned Counsel for the Parties and perused the records.

6. The learned counsel for the applicant, Mr. Rajesh Joshi, has argued that there has been non-compliance with the 2 mandatory provisions of Sections 50, 52A, 55, and 57 of the NDPS Act, as well as Section 100 of the Code of Criminal Procedure. It is contended that under Section 100 Cr.P.C., before making a search, the officer or other person shall call upon two or more independent witnesses, which was not done in the present case. The counsel has also raised concerns about the procedure followed during the alleged search and seizure, arguing that the mandatory requirements laid down by the Hon'ble Supreme Court in various judgments have not been adhered to in this case.

7. Another significant contention raised by the applicant's counsel pertains to the classification of the substances allegedly recovered. It has been argued that Avil (Pheniramine Maleate) injections are not notified as narcotic drugs in the schedule of the NDPS Act. Regarding Buprenorphine, the counsel submits that while it comes under psychotropic substances, it is not notified in Schedule I of the NDPS Rules, 1985, and thus is not banned for the purpose of manufacturing and possession. Therefore, the counsel contends that the applicant has not committed any offense under Section 8 of the NDPS Act.

8. The applicant's counsel has emphasized that the injections allegedly recovered from the applicant are easily available in medical shops, and therefore, the prosecution's contention that the alleged recovery items were stored and possessed for commercial purposes is not sustainable in the eyes of law. The counsel has also pointed out that the applicant has no criminal history, has been in jail since 3

05.05.2024, and that all prosecution witnesses are police personnel, so there is no chance of tampering with evidence if the applicant is released on bail.

9. The learned counsel for the State, Mr. Bhaskar Chandra Joshi has vehemently opposed the bail application. The State's counsel has argued that the applicant was caught red-handed with the contraband substances, and there is substantial evidence to establish his involvement in the offense. It is submitted that the investigation was duly conducted, statements of the complainant and witnesses were recorded, and a charge sheet has been filed on

23.08.2024. The State contends that the forensic report confirms the presence of Buprenorphine and Pheniramine Maleate in the seized substances, thus corroborating the recovery.

10. Addressing the argument regarding the absence of independent witnesses, the State's counsel has submitted that an attempt was made to involve independent witnesses, but none came forward, which is a common occurrence in NDPS cases where people are reluctant to get involved due to fear or other reasons. Regarding the compliance with Section 50 of the NDPS Act, the State's counsel has argued that this was a case of chance recovery, and hence the provisions of Section 50 of the NDPS Act are not strictly applicable in this case.

11. The State has further submitted that Buprenorphine falls under the category of psychotropic substances under the 4 NDPS Act, and the quantity recovered from the applicant falls within the commercial quantity as defined under the Act. The State maintains that there is sufficient evidence against the applicant, and the Special Judge had rejected the bail application after considering all facts and circumstances of the case. The State's counsel has also argued that the crime committed by the applicant is of a serious nature and against the interests of a healthy society, as noted by the Special Judge in his order dated

05.11.2024.

12. This Court observes that the case primarily hinges on the recovery of the alleged contraband substances from the possession of the applicant. The recovery was allegedly made in a public place near the railway station, which is typically a crowded area. However, there are no independent witnesses to corroborate the recovery. All the prosecution witnesses are police personnel involved in the apprehension and arrest of the applicant. This Court is cognizant of the jurisprudence established by the Hon'ble Supreme Court regarding the evidentiary value of police witnesses in NDPS cases. While it is true that the testimony of police witnesses cannot be discarded merely because they are police officials, the absence of independent witnesses in a recovery made in a public place does raise certain concerns that need to be addressed during trial.

13. Furthermore, the Court notes that there appears to be no previous criminal history attributed to the applicant, 5 which is a relevant factor to consider while deciding a bail application. The fact that the applicant has no prior criminal antecedents suggests that he may not be a habitual offender, and this weighs in favor of granting bail.

14. The Court also deems it necessary to delve into the legal position regarding the substances allegedly recovered from the applicant. The applicant's contention regarding the classification of Avil (Pheniramine Maleate) injections under the NDPS Act merits serious consideration. If Avil injections are indeed not notified as narcotic drugs under the NDPS Act, then the recovery of these injections would not constitute an offense under the Act.

15. In respect of Buprenorphine, the Court notes the applicant's submission that while it comes under psychotropic substances, it is not notified in Schedule I of the NDPS Rules, 1985, and thus is not banned for the purpose of manufacturing and possession. This is a complex legal question requires a detailed examination of the relevant provisions of the NDPS Act and Rules, as well as the notifications issued thereunder. The quantity of Buprenorphine allegedly recovered is also a relevant factor in determining whether it falls within the commercial quantity category as claimed by prosecution.

16. The Court takes note of the applicant's contention regarding procedural lapses in the compliance with various provisions of the NDPS Act, particularly Sections 50, 52A, 6 55, and 57, as well as Section 100 of the Code of Criminal Procedure. The jurisprudence on NDPS cases, as developed by the Hon'ble Supreme Court over the years, emphasizes strict compliance with the procedural safeguards provided under the Act, given its stringent provisions. Any non- compliance can potentially vitiate the proceedings. However, the State's contention that this was a case of chance recovery, and hence the provisions of Section 50 of the NDPS Act are not strictly applicable, also needs consideration. The distinction between personal search and search of a container or belongings in the context of Section 50 of the NDPS Act has been elucidated by the Hon'ble Supreme Court in various judgments, and this aspect would need to be examined in detail during the trial.

17. Importantly, the Court must also consider implications of Section 67 of the NDPS Act, which empowers authorized officers to record confessional statements during inquiry. However, the Supreme Court in Tofan Singh v. State of Tamil Nadu (2020) 9 SCC 362 has categorically held that such confessional statements recorded by police officers under Section 67 are not admissible as evidence in trial under the NDPS Act. In the present case, the State relies heavily on the alleged statement of the applicant under Section 67, which according to the prevailing law, cannot be the sole basis of conviction or even prima facie assumption of guilt for the purpose of bail. 7

18. This Court is mindful of the fact that the applicant has in custody since 05.05.2024, a period of approximately six months. The investigation has been completed, and the charge sheet has been filed on

23.08.2024. The trial is likely to take considerable time given the nature of the offense and the complexity of the legal issues involved. The principle that bail is the rule and jail is the exception, as consistently held by the Hon'ble Supreme Court, assumes significance in cases where the accused has already spent a substantial period in custody and where certain legal questions remain to be addressed during trial. Prolonged pre-trial detention needs to be carefully weighed against the principles of liberty enshrined in our Constitution, especially when the presumption of innocence continues to operate in favor of the accused.

19. Moreover, the Court notes that the applicant is a permanent resident of the given address, and there is no material on record to suggest that he might abscond or tamper with the evidence if released on bail. All the prosecution witnesses are police personnel, which minimizes the risk of witness tampering. The applicant is also willing to furnish adequate sureties to the satisfaction of the court concerned and has undertaken to comply with any conditions that the Court may impose. ORDER Let the applicant, Mohammad Fahim, be released on his furnishing a personal bond with two sureties of the like amount to the satisfaction of the court concerned. The 8 applicant shall not tamper with the evidence, shall not attempt to influence any witness, and shall appear before the trial court on each date fixed. In case of breach of any of these conditions, the State shall be at liberty to move for cancellation of bail. Accordingly, the bail application is allowed.

16.04.2025 NR Ashish Naithani, J 9