Sahid Malik v. State of Uttarakhand

Laboratory (FSL) report confirms the presence of diacetylmorphine (heroin/smack), and a charge sheet has already been filed under Sections 8, 21, and 29 of the NDPS Act.

3. The learned counsel for the applicant submits that the applicant has been falsely implicated and that mandatory provisions under Sections 50, 52, and 52A of the NDPS Act have not been followed. 1

4. It has been argued that the Circle Officer (CO) who supervised the search and seizure was not a gazetted officer, thereby violating Section 50 of the NDPS Act. The applicant further contends that Sections 52 and 52A were not complied with, as there is no proper inventory, no magistrate certification, and no compliance with statutory safeguards. It is also argued that Sections 55 and 57 of the NDPS Act were not adhered to, raising questions about the integrity of the case.

5. The applicant argues that there is no evidence proving any conspiracy between him and the co-accused, which is a necessary element under Section 29 of the NDPS Act.

6. The learned counsel for the State has opposed the bail application, contending that the offense falls under commercial quantity, invoking the rigorous conditions of Section 37 of the NDPS Act. Regarding Sections 52 and 52A, the FIR details confirm that the contraband was seized, documented, and photographed, and a proper inventory was prepared and submitted to the magistrate as per the legal mandate.

7. Similarly, Section 57 was adhered to, as the arrest and seizure report was submitted to the superior officer within the prescribed time, with relevant extracts of the FIR confirming the same. The state argues that the charge sheet contains sufficient material evidence against the applicant, and his release may jeopardise the trial and pose a risk of re-offending.

8. Upon hearing the submissions of both parties and after careful examination of the records, it is evident that the recovered contraband, 263 grams of Heroin, falls under Entry No. 56 of the Notification S.O. 1055(E), dated 19.10.2001, which categorisesit under commercial quantity as per the NDPS Act.

9. The notification specifies that 5 grams constitutes a small quantity, whereas quantities of 250 grams or more are deemed commercial quantities. Given that the seized contraband exceeds this threshold, the strict provisions of Section 37 of the NDPS Act apply, placing a statutory embargo on the grant of bail unless the twin conditions under Section 37(1)(b) are met.

10. Section 37(1)(b) explicitly states that in cases involving commercial quantities, bail can only be granted if the Court is satisfied that (i) there are reasonable grounds to believe that the accused is not guilty of the offense, and (ii) the accused is not likely to commit any offense while on bail. In the present case, the applicant has failed to satisfy these twin conditions.

11. The strength of the state’s case, supported by the positive FSL report and procedural compliance, negates any presumption of innocence at this stage. Furthermore, the nature of the offense and the quantum of contraband raise a substantial likelihood that the applicant, if released, may indulge in similar activities, thereby justifying the denial of bail.

12. The Forensic Science Laboratory (FSL) report conclusively establishes the presence of diacetylmorphine in the seized substance, thereby confirming it as a narcotic drug under the NDPS Act. The chemical analysis, coupled with the fact that the chain of custody was meticulously maintained, strengthens the state’s case. Furthermore, the applicant has contended that the Circle Officer (CO) searching was not a gazetted officer, thereby violating Section 50 of the NDPS Act.

13. However, this contention is legally untenable. Section 50(1) of the NDPS Act mandates that when a person is to be searched, he must be informed of his right to be searched before a Magistrate or a Gazetted Officer. In the present case, the search was conducted under the supervision of a CO, who qualifies as a Gazetted Officer, thus fulfilling the statutory requirement.

14. Moreover, the Supreme Court in State of Punjab v. Baljinder Singh (2019) 10 SCC 473 has held that Section 50 applies only to personal searches and not to searches of belongings, pockets, or containers. Since the contraband in this case was recovered from the applicant’s jeans pocket, the compliance with Section 50 stands duly established.

15. The applicant has also argued that Sections 52 and 52A of the NDPS Act were not adhered to, but the records prove otherwise. Section 52(3) mandates that the officer seizing the narcotic substance must ensure its production before the Magistrate without unnecessary delay, while Section 52A requires the preparation of an inventory, taking of photographs, and forwarding them to the Magistrate.

16. The FIR explicitly records that the seized contraband was sealed at the site of recovery, duly documented in an inventory, and presented before the Magistrate, satisfying both these statutory requirements.

17. Similarly, the compliance with Section 55 of the NDPS Act, which mandates that the seized narcotics be kept in safe custody under proper seal in the police station Malkhana, has been established.

18. The case diary entries confirm that the contraband was deposited in the Malkhana, with necessary register entries ensuring its integrity. Further, Section 57, which requires that a full report of the arrest and seizure be sent to a superior officer within 48 hours, was complied with, as evidenced by the submission of a detailed report to the Superintendent of Police (Narcotics) within the stipulated time frame.

19. The applicant has raised concerns regarding the use of a laptop during the seizure process, alleging that it renders the state’s case unreliable.

20. However, the FIR categorically states that the laptop was used to digitally document the inventory and maintain accuracy in the chain of custody. The use of digital records enhances, rather than undermines, the procedural integrity of the seizure and prevents any subsequent manipulation or discrepancies.

21. Considering the commercial quantity of the contraband, the FSL-confirmed presence of narcotics, the compliance with statutory provisions, and the stringent requirements of Section 37 of the NDPS Act, the applicant has failed to meet the necessary conditions for bail. The risk of tampering with evidence, influencing witnesses, and committing similar offenses if released further justifies the rejection of bail. Accordingly, the bail application stands rejected. ( A sh i sh N a i t h a n i , J.) NR/

26.03.2025