IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

First Bail Application No.2247 of 2020

Lokesh Kumar ….. Applicant

Versus

State of Uttarakhand ….. Respondent

Mr. Nandan Arya, learned counsel for the applicant.

Ms. Manisha Rana Singh, learned A.G.A. along with Ms. Sonika
Khulbe, learned B.H. for the State.

Hon’ble R.C. Khulbe, J.

Accused–Lokesh Kumar has sought his release

on bail in connection with Case Crime/FIR No.0061 of
2020 u/s 8/22 of the NDPS Act, registered at P.S.
Clement Town, District Dehradun.

2. It is argued that the accused has been falsely

implicated; he is languishing in jail since 18.09.2020; as
per the recovery memo, the police party had prior
information about the vehicle (motorcycle) bearing
registration No.UK07-DP-1962, in spite of that, the police
party did not comply with the provision of Section 42 of
the Act as also Section 100(4) of the Cr.P.C; there is no
independent witness of the recovery; further, that the
police party had sufficient time to record the information
but neither they recorded the information nor obtained
any warrant from the competent court; accordingly, the
accused is entitled for bail in view of the law laid down by
the Apex Court in the case of ‘Buta Singh v. State of
Haryana’ AIR 2021 S.C. 1913.

3. Per contra, learned counsel for the State

vehemently opposed for bail and argued that the police
party did not have sufficient time to record information as
they were on patrolling duty; the police party informed
the C.O.; the contraband article comes within the
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definition of commercial quantity, accordingly, the

accused is not entitled for bail.

4. Heard learned counsel for both the parties and

perused the entire documents on record.

5. In so far as compliance of Section 42 of the

NDPS Act is concerned, the Hon’ble Apex Court in the
case of “State of Rajasthan v. Jag Raj Singh” (2016) 11
SCC 687 has held that the compliance of Section 42 of
the Act is mandatory in nature in such a case where the
vehicle is a private one.

6. The Hon’ble Apex Court in a recent case Buta

Singh v. State of Haryana (Supra) has clearly held out
that a private vehicle would not come within the
expression “public place”, as per explanation given to
Section 43 of the Act.

7. It is true that the law laid down by the Apex

Court is binding on the soil of India as per Article 141 of
the Constitution. Now, coming to the facts of the instant
case, from a perusal of the recovery memo, it is clear that
when the police party was on patrolling duty, they
received information from informer about the contraband
article being brought by the accused by his vehicle
bearing UK07-DP-1962. The police party reached at the
spot and apprehended the accused; they informed the
accused about his legal rights as envisaged under the
Act. Thereafter, S.I. Vikas Rawat informed the C.O. Mr.
Ankush Mishra through his telephone. Accordingly, the
C.O. reached at the spot. The search was conducted and
the said contraband article was recovered from the bag of
the accused.

8. The learned counsel for the applicant drew

attention of this Court towards Section 42 of the Act and
argued that although, the police party had prior
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information, in spite of that, they did not note down the

information before taking search nor obtained any search
warrant.

9. The Constitution Bench of the Hon’ble Apex

Court in State of Haryana v. Jarnail Singh (2009) 8 SCC
539, has held that if the information was received when
the officer was not in the police station but he was on the
move, either on patrolling duty or otherwise, either by
mobile phone, or other means, and the information calls
for an immediate action and any delay would have
resulted in the goods or evidence being removed or
destroyed, it would not be feasible or practical to take
down in writing the information given to him, in such a
situation, he could take action as per Clauses (a) to (d) of
Section 42(1) of the Act, and thereafter, as soon as it is
practical, to record the information in writing and
forthwith inform the superior officer about the same.

10. The heading of Section 42 of the Act starts with

‘power of entry, search, seizure and arrest without
warrant or authorisation’. From a perusal of the
Section, it is clear that u/s 42 of the Act, the empowered
officer has a power to entry, search, seizure and arrest
without warrant or authorization.

11. No doubt, in the present matter, as per the recovery

memo, prima facie it is clear that the arresting party did
not note down the information before taking search, but
as per the record, the police party informed their superior
officer (C.O.) immediately through mobile connection
No.8126372169 who reached at the spot. The search was
conducted in presence of the C.O., who certainly, was the
superior officer of the police party. The police party, at
first, received the information through informer while
they were on patrolling duty. It is clear that although the
police party was not in a position to note down the
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information as they were on patrolling duty but they did

properly inform their superior officer.

12. As far as the authority of Buta Singh (Supra) is

concerned, in that case, the police party themselves
searched the accused and their vehicle, while in the
present matter, the police party immediately informed
their superior officer in whose presence the search was
conducted.

13. Prima facie it is clear that the search was

conducted in presence of the C.O. who was also a
Gazetted Officer. Thus, it can safely be inferred that the
search was conducted as per the procedure laid down in
the Act as also in the Cr.P.C.

14. Moreover, it is a matter of evidence, whether or

not, there was a total non-compliance of Section 42 of the
Act but prima facie it is apparent that the police party
had duly informed their superior officer before effecting
the search. The contraband article recovered from the
applicant falls within the definition of commercial
quantity.

15. At last, it needs to be mentioned about a

judgment rendered by the Hon’ble Apex Court in the case
of Union of India Vs. Ram Samujh 1999 (9) SCC 429,
wherein the Hon’ble Apex Court has made following
observations in Paragraph No.7 of the said judgment:-
"7. It is to be borne in mind that the aforesaid legislative
mandate is required to be adhered and followed. It should be
borne in mind that in murder case, accused commits murder of
one or two persons, while those persons who are dealing in
narcotic drugs are instruments in causing death or in inflicting
death blow to number of innocent young victims, who are
vulnerable: it causes deleterious effects and deadly impact on
the society; they are a hazard to the society; even if they are
released temporarily, in all probability, they would continue
their nefarious activities of trafficking and/or dealing in
intoxicants clandestinely. Reason may be large stake and illegal
profit involved.
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16. Looking to the aforesaid facts and

circumstances of the case and particularly the law laid
down by the Hon’ble Apex Court in the afore-mentioned
judgments, the applicant does not deserve bail at this
stage. Accordingly, the bail application is dismissed.

17. It is clarified that the observations with regard

to the case of the applicant, made in this order, are
strictly confined to the disposal of this bail application,
and must not be construed to have any reflection on the
ultimate merits of his case.

18. Given the fact that the applicant is in jail since

18.09.2020, the trial of the case is expedited.

19. Pending application, if any, stands disposed of.

(R.C. Khulbe, J.)

17.08.2021
Rdang