Uttarakhand High Court
Shahzad vs State Of Uttarakhand on 28 March, 2025
2025:UHC:2663
I N TH E H I GH COURT OF UTTARAKH AN D
AT N AI N I TAL
Bail Application 1st No.2107 of 2024
Shahzad ......Applicant
Vs.
State of Uttarakhand .....Respondent
Presence:
Mr. Vivek Shukla, Mr. Bhuwnesh Joshi, learned counsels, for the applicant.
Mr. Bhaskar Ch. Joshi, learned AGA, for the State of Uttarakhand.
H on'ble Ashish N a it ha ni, J ( Ora l)
The present bail application has been moved by the
applicant-Shahzad, son of Noor Hasan, under Section 483 of the
Bharatiya Nagarik Suraksha Sanhita, 2023, seeking regular bail in
connection with FIR No. 954 of 2024, registered at Police Station
Laksar, District Haridwar, under Sections 8/22 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (hereinafter referred
to as "NDPS Act").
2. Heard Mr. Vivek Shukla and Mr. Bhumesh Joshi, learned
counsel for the applicant, and Mr. [Name], learned Deputy
Advocate General for the State. Perused the record.
3. As per the case of the prosecution, on 23.09.2024, a police
team comprising Sub-Inspector Narendra Singh, Head Constable
Arjun Singh and Constable Ganga was on routine patrolling duty in
the area of Bhikkampur near Fatwa Road. It is alleged that the
applicant, who was riding a motorcycle bearing registration number
UK17T-7869, attempted to flee upon being signalled to stop, lost
control, and fell, whereupon he was apprehended. It is further
alleged that during questioning, he voluntarily disclosed that
1
narcotic substances were concealed in the bag tied to his
motorcycle.
4. The applicant was allegedly informed of his right under
Section 50 of the NDPS Act to be searched before a Magistrate or a
Gazetted Officer. Upon his stated consent, Circle Officer Niharika
Semwal, a Gazetted Officer, was called to the spot and conducted
the search. From the applicant's possession, the following articles
are alleged to have been recovered: 99 tablets of Alprazolam (brand
name ALPRASAFE-05), 168 capsules of Dicyclomine
Hydrochloride Tramadol, and 14 cc of Codectuss syrup.
5. The tablets and capsules were weighed on the spot. The
Alprazolam was recorded at 13.86 grams (0.14 grams × 99), and
the Tramadol capsules at 42 grams (0.25 grams × 168). The
Codectuss syrup, not being a notified psychotropic substance under
the NDPS Act, is not of immediate relevance. It is also stated that
the applicant made a voluntary confession, attributing his
possession of the said articles to financial distress caused by debts
accrued in the course of managing a local committee.
6. The First Information Report was registered at 10:55 AM on
the same day, nearly nine and a half hours after the alleged
recovery. The applicant contends that the delay is unexplained and
vitiates the credibility of the prosecution's story.
7. The applicant has sought bail on the grounds that the
recovered contraband is well below the threshold of commercial
quantity; that the Codectus syrup is not covered under the NDPS
Act; that there are material lapses in compliance with Sections 42,
50, 52A and 57 of the Act; and that the FSL report confirming the
chemical nature of the recovered substances has not yet been placed
on record.
8. It is further submitted that there are no independent witnesses
to the search and seizure, although the alleged incident occurred in
a public place; that there is no medical examination report
supporting the prosecution's version that the applicant fell off the
motorcycle; and that the applicant is a first-time offender and the
sole breadwinner of his family.
9. The State has opposed the bail application and submitted that
the recovery was made in the presence of a Gazetted Officer in
accordance with Section 50 of the NDPS Act; that the delay in
lodging the FIR is attributable to the procedural formalities
involved in the weighing, sealing and inventory preparation; and
that the voluntary confession of the applicant reveals his conscious
possession and intent to distribute the contraband.
10. From the material available on record, it is evident that the
weight of Alprazolam (13.86 grams) and Tramadol (42 grams)
allegedly recovered from the applicant falls significantly below the
prescribed commercial quantity threshold under the NDPS Act,
which is 100 grams for Alprazolam and 250 grams for Tramadol.
Therefore, the rigour of Section 37 of the Act, which creates a
statutory embargo on the grant of bail for commercial quantity
offences, does not apply to the present case.
11. The Hon'ble Supreme Court in Tofan Singh v. State of Tamil
Nadu, (2021) 4 SCC 1, held that confessional statements made to
police officers under the NDPS Act are inadmissible in evidence in
terms of Sections 25 and 26 of the Indian Evidence Act. The
alleged confession of the applicant, made before police officers and
in the absence of judicial authority, therefore carries limited
evidentiary value at this stage.
12. In State of Punjab v. Baldev Singh, (1999) 6 SCC 172, the
Constitution Bench emphasised the strict compliance with
procedural safeguards under Section 50 of the NDPS Act as a
fundamental right. At this stage, the present case raises serious
questions about compliance with not only Section 50 but also
Sections 42, 52A, and 57, particularly in light of the inordinate
delay in registering the FIR and the absence of documentation from
any independent witness.
13. The non-availability of the FSL report, even after several
months from the date of recovery, is also significant in Mohd.
Sahabuddin v. State of Assam, 2023 SCC OnLine SC 1315, the
Supreme Court held that in NDPS cases involving non-commercial
quantity, the non-filing of the FSL report casts a shadow over the
reliability of the prosecution's case.
14. It is also not disputed that the applicant has no criminal
antecedents and has remained in custody since 23.09.2024. The
charge sheet is yet to be filed. Continued detention of the applicant,
in such circumstances, would result in undue hardship without
furthering the object of justice.
15. In Sanjay Chandra v. CBI, AIR 2012 SC 830, the Hon'ble
Supreme Court observed that bail is intended to secure the
accused's attendance at trial and not to detain him as a pre-
conviction punishment. Similarly, in Dataram Singh v. State of
U.P., AIR 2018 SC 980, it was reiterated that every accused is
presumed innocent until proven guilty, and personal liberty must
not be curtailed casually.
16. Considering the totality of the circumstances, the absence of
commercial quantity, the delay in registration of FIR, non-
availability of the FSL report, procedural doubts surrounding
compliance with the NDPS Act, and the applicant's personal
circumstances, this Court is of the considered opinion that a case
for grant of bail is made out.
ORDER
17. Bail application is allowed. Let the applicant-Shahzad be
released on bail in connection with FIR No. 954 of 2024, Police
Station Laksar, District Haridwar, under Sections 8/22 of the NDPS
Act, on furnishing a personal bond and two reliable sureties, each
of like amount, to the satisfaction of the court concerned, subject to
the following conditions:
(i) The applicant shall not tamper with the evidence
or influence any prosecution witness in any manner.
(ii) In case of breach of any condition, the State shall
be at liberty to apply for cancellation of bail.
( Ashish N a it ha ni, J.)
28.03.2025
NR/