(Under Section 483 of B.N.S.S.) Shanu S/o Rahees Ahmed v. Presence

connection with FIR No. 165 of 2024, registered at Police Station Pulbhatta, District Udham Singh Nagar. The case stems from an incident dated

19.10.2024, when the applicant, while driving a blue Wagon R car along with two co-accused Khurshid and Asma was intercepted by the police near Shankar Farm Cut during a routine check.

2. It is alleged that all three occupants appeared nervous and, upon questioning, admitted to possessing smack intended for sale. The police claim to have informed them of their rights under Section 50 of the NDPS Act, and, after obtaining their consent, conducted a search in the presence of a Gazetted Officer.

3. During the search, 353 grams of smack (net weight) were allegedly recovered from the applicant’s pants pocket, and similar recoveries were made from the co-accused. 1

4. The entire procedure was videographed by Constable Dharamveer Singh, and the contraband was sealed and inventoried at the spot.

5. All three were then arrested, and an FIR was registered under Sections 8, 21, 29, and 60 of the NDPS Act. The applicant has remained in custody since 20.10.2024.

6. During further investigation, another individual, Rifakat, was arrested on 01.01.2025, with an alleged recovery of 1062 grams of smack.

7. The applicant’s previous bail application was rejected by the learned Special Judge (NDPS Act), Udham Singh Nagar, vide order dated

03.12.2024. He now seeks bail from this Court.

8. The State’s case, in brief, is that on 19.10.2024, during a routine police check near Shankar Farm Cut, a blue-coloured Wagon R car bearing registration no. UP14CF9528, coming from Kichha towards Sitarganj, was intercepted on suspicion.

9. It is alleged that the occupants of the vehicle namely the applicant Shanu (driver), and co-accused Khurshid and Asma appeared nervous and, upon being questioned, reportedly admitted to possessing smack intended for sale in Sitarganj.

10. The police are said to have informed all three persons of their legal rights under Section 50 of the NDPS Act, following which they consented to be searched in the presence of a Gazetted Officer.

11. The Circle Officer of Sitarganj was accordingly called to the spot, and it is alleged that a search conducted thereafter led to the recovery of 353 grams of smack (net weight) from the applicant’s pants pocket. Similar quantities are stated to have been recovered from the possession of the co- accused. 2

12. The entire search and seizure operation was reportedly videographed by Constable Dharamveer Singh on the complainant’s mobile phone. It is further alleged that the contraband was sealed and inventoried at the spot itself, and that all procedural formalities were observed.

13. The applicant and the co-accused were then arrested, and an FIR was registered under Sections 8/21/29/60 of the NDPS Act.

14. The investigation is also said to have led to the arrest of one Rifakat on 01.01.2025, from whom 1062 grams of smack was allegedly recovered.

15. Heard Mr. Vikas Kumar Guglani, learned counsel for the Applicant, and Mr. Rakesh Negi, learned Brief Holder for the State.

16. Learned counsel for the applicant has contended, with emphasis, that the applicant has been falsely implicated in the present case.

17. It is contended that no independent witness was associated with the alleged recovery, which casts doubt on the credibility of the State’s version.

18. The learned counsel further argued that there have been procedural lapses in compliance with the mandatory provisions of the NDPS Act, particularly Sections 42(2), 50, and 52. He emphasised that the arresting officer did not prepare any memo of information given by the applicant in writing as required under Section 50 of the NDPS Act, nor did they associate any independent witness in the recovery or entire process of investigation.

19. It was also argued that the inventory report prepared by the police team violates the mandatory provisions of the Act. The applicant's counsel stressed that the accused has deep roots in society and has been languishing in jail since 20.10.2024, and therefore deserves to be enlarged on bail.

20. Per contra, learned Brief Holder for the State vehemently opposed the bail application. It was submitted that the present case involves the recovery of 353 grams of smack from the conscious possession of the 3 applicant, which falls under the category of commercial quantity under the NDPS Act.

21. It was asserted that the applicant, along with co-accused persons, was apprehended during a lawful checking operation and that all procedural requirements under Sections 42, 50, and 52 of the NDPS Act were duly complied with. The search was conducted in the presence of a Gazetted Officer (Circle Officer, Sitarganj), and necessary consent memos were executed. The entire operation was also videographed and duly documented.

22. It was further contended that the applicant is not only directly involved in the commission of the present offence but also has a criminal history, including prior involvement in another case under Sections 323, 336, 352, and 506 IPC. The nature and gravity of the offence, coupled with the statutory bar under Section 37 of the NDPS Act, disentitle the applicant from being released on bail.

23. It was further argued that there are no reasonable grounds to believe at this stage that the applicant is not guilty of the offence and that he is not likely to commit any offence if enlarged on bail. In view of the seriousness of the charges and the larger interest of society, the State prayed for dismissal of the bail application.

24. After having heard the learned counsel for the parties and perusing the material on record, this court finds that this case requires consideration in light of the special provisions related to bail under Section 37 of the NDPS Act. Section 37 imposes stringent conditions for release on in cases involving commercial quantities of narcotic drugs or psychotropic substances.

25. The provision clearly stipulates that no person accused of an offense involving commercial quantity shall be released on bail unless (i) the Public Prosecutor has been given an opportunity to oppose the application, and (ii) where such opposition is made, the Court is satisfied that there are 4 reasonable grounds for believing that the accused is not guilty of such offense and that he is not likely to commit any offense while on bail.

26. In the present case, the applicant is alleged to have been found in possession of 353 grams of smack, which significantly exceeds the commercial quantity threshold of 250 grams prescribed under the NDPS Act. This makes the offence particularly serious and attracts the stringent bail provisions under Section 37 of the Act. The Hon'ble Supreme Court, in numerous judgments, has emphasised the need for strict compliance with Section 37 while considering bail applications in NDPS cases, particularly those involving commercial quantities.

27. With respect to the contention regarding procedural lapses, this court observes that the prosecution has produced documentary evidence to demonstrate compliance with the mandatory provisions of the NDPS Act.

28. The information memo dated 19.10.2024 clearly indicates that the applicant was informed of his rights under Section 50 of the NDPS Act.

29. Similarly, the inventory report, weighing memo, and consent letter dated 19.10.2024 have been produced before this Court, establishing prima facie compliance with the procedural requirements.

30. Furthermore, the search was conducted in the presence of a Gazetted Officer (Circle Officer, Sitarganj), and the entire procedure was videographed as required by law.

31. Regarding the absence of independent witnesses, it is now well- settled through judicial pronouncements that the absence of independent witnesses does not vitiate the State’s case if there are good reasons for such absence.

32. In the present case, the statements of the police witnesses recorded under Section 180 of B.N.S.S. consistently mention that efforts were made to procure independent witnesses, but no one was willing to join the proceedings. The statements of S.I. Dhiraj Verma (Complainant), Bahadur Singh Chauhan (Circle Officer), S.I. Rini Chauhan, Head Constable 5 Dharamveer Singh, Constable Deepak Bisht, and Constable Charu Pant all corroborate this position.

33. Considering the totality of circumstances, the quantum of contraband recovered, the potential threat to society, the applicant’s criminal antecedents, and the statutory restrictions imposed by Section 37 of the NDPS Act, this Court is of the considered view that the applicant is not entitled to be released on bail at this stage.

34. Accordingly, the bail application is rejected. Dated:03.04.2025 NR/ Ashish Naithani J. 6