Uttarakhand High Court
Sahid Malik vs State Of Uttarakhand on 26 March, 2025
2025:UHC:2349
I N TH E H I GH COURT OF UTTARAKH AN D
AT N AI N I TAL
Bail Application 1st No.2424 of 2024
Sahid Malik ......Applicant
Vs.
State of Uttarakhand .....Respondent
Presence:
Mr. Ankur Sharma, learned counsel, for the applicant.
Mr. Rakesh Negi, learned Brief Holder, for the State of Uttarakhand.
H on’ble Ashish N a it ha ni, J ( Ora l)
The present bail application has been filed under Section
439 of the Code of Criminal Procedure on behalf of the applicant,
Ayazuddin, who is in judicial custody in connection with Case Crime
No. 232 of 2024, registered under Sections 8, 21, and 29 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (NDPS Act), at Police
Station Nehru Colony, District Dehradun. The applicant has been in
custody since 19.07.2024.
2. It has been alleged that on 19.07.2024, the applicant was
apprehended with 263 grams of Smack (Heroine), which is a
commercial quantity under Entry No. 56 of the Notification S.O.
1055(E), dated 19.10.2001, as per the NDPS Act. The contraband was
recovered from the right front pocket of the applicant’s jeans and
properly sealed. The seizure, search, and arrest proceedings were
videotaped, and a certificate under Section 63(4)(c) of Bhartiya Saksha
Adhiniyam, 2023, has been placed on record. The Forensic Science
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.
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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.
( Ashish N a it ha ni, J.)
26.03.2025
NR/