May vs State Of Uttarakhand on 1 May, 2025

Uttarakhand High Court

May vs State Of Uttarakhand on 1 May, 2025

                                                          2025:UHC:3338



 HIGH COURT OF UTTARAKHAND AT NAINITAL
          First Bail Application No. 1507 of 2024
                            01 May, 2025


Viresh Kumar Gupta                                      --Applicant

                                Versus
State Of Uttarakhand                                  --Respondent
----------------------------------------------------------------------
Presence:-
Mr. Arvind Vashihsth, learned Senior Advocate, assisted by    Mr.
Hemant Singh Mahra and Mr. Rachit Manglik, Advocates
for the Applicant.
Mr. S.S.Chauhan, learned Deputy Advocate General, assisted by Mr.
Akshay Latwal, learned AGA and Mr. Vikas Uniyal, Mr. Prabhat
Kandpal, Brief Holders for the State.
----------------------------------------------------------------------

Hon'ble Alok Mahra, J.

Applicant- Viresh Kumar Gupta, who is in Judicial
custody in connection with Case Crime/FIR No. 18 of
2024, under Sections 8/20/60 of the Narcotic Drugs and
Psychotropic Substances Act, 1985, registered at Police
Station Banbasa, District Champawat has sought his
release on bail.

2. Learned counsel for the applicant submits that as per
the facts narrated in the First Information Report 10
packets of the contraband articles alleged to be charas
were recovered from the bag of the applicant. On weighing,
the alleged contraband, which was contained in 10
transparent polythene packets, its total weight was 9.940
Kg. After removing these packets and after weighing, the
contraband it came to 9.794 Kg. This contraband was
mixed and kept in two bundles. Counsel for the applicant
further draw attention of this Court to the report of the

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Malkhana register of Police Station Banbasa, District
Champawat.

3. Learned counsel for the applicant would submit that
the sample from the contraband seized, whereby 10-10
grams of sample was taken on 12.02.2024 from the two
bundles. Result of the report of the Forensic Science
Laboratory gave positive test of Charas of the samples
which were sent to it. Learned Senior Counsel for the
applicant has submitted that there are NARCOTIC DRUGS
AND PSYCHOTROPIC SUBSTANCES (SEIZURE, STORAGE,
SAMPLING AND DISPOSAL ) RULES, 2022 (hereinafter
referred to as the Rules 2022), which has been framed in
exercise of power conferred by Section 76 read with Section
52-A of the Narcotic Drugs and Psychotropic Substances
Act, 1985.

4. Learned counsel draw attention of this Court towards
Rule 10 of the Rules, which is extracted as below:

“10. Drawing the samples.-

(1) One sample, in duplicate, shall be drawn from each
package and container seized.

(2) When the packages and containers seized together are of
identical size and weight bearing identical marking and the
contents of each package give identical results on colour test
by the drugs identification kit, conclusively indicating that the
packages are identical in all respects, the packages and
containers may carefully be bunched in lots of not more than
ten packages or containers, and for each such lot of packages
and containers, one sample, in duplicate, shall be drawn:

Provided that in the case of ganja, poppy straw and hashish
(Charas) it may be bunched in lots of not more than forty
packages or containers.

(3) In case of drawing sample from a particular lot, it shall be
ensured that representative sample in equal quantity is taken
from each package or container of that lot and mixed together

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to make a composite whole from which the samples are drawn
for that lot.”

5. Learned counsel would contend that when the
contraband was seized, one sample in duplicate should
have been taken from each of the packets and if the
packets and containers seized were of identical in size and
width bearing identical marking and contains of each
packet gave identical results of colour test by drugs
identification kit, conclusively indicating that the drugs are
identical in all respects, then they may be bunched in lots
of not more than 40 packages or containers in respect of
charas.

6. Learned Senior Counsel has contended that in the
present case, no such sample was taken from each of the
packet before they were mixed together and two bundles
were made out of 10 packets. He has further contended
that neither weight of each bundle was taken separately
and admittedly since 10 packets were alleged to have been
recovered from the possession of the applicant, whose total
weight was 9.794 grams, therefore, no packet containing
contraband alleged to be charas which comes in the
commercial quantity.

7. In support of his contention, learned counsel has placed
reliance on the principles of law, as laid down by the Hon’ble
Supreme Court, in the case of Gaunter Edwin Kircher Vs. State
of Goa, Secretariat Panaji, Goa, (1993) 3SCC 145.

8. In the case of Gaunter Edwin Kircher (supra), the Hon’ble
Supreme Court observed that “before examining the scope of
this provision, we shall first consider whether the
prosecution has established beyond all reasonable doubt
that the accused had in his possession two pieces of Charas

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weighing 7 gms and 5 gms respectively. As already
mentioned only one piece was sent for chemical analysis
and PW 1, the Junior Scientific Officer who examined the
same found it to contain Charas but it was less than 5 gms.
From this report alone it cannot be presumed or inferred
that the substance in the other piece weighing 7 gms also
contained Charas. It has to be borne in mind that the Act
applies to certain narcotic drugs and psychotropic
substances and not to all other kinds of intoxicating
substances. In any event in the absence of positive proof
that both the pieces recovered from the accused contained
Charas only, it is not safe to hold that 12 gms of Charas
were recovered from the accused.”

9. Rule 10 of the Rules of 22 lays down process for
drawing of samples. In the present matter, the samples of
the alleged recovered contraband were not drawn in
accordance with the above rules. The courts are not
expected to accept every word of the complainant as gospel
truth and invoke the bar of Section 37 of the Act, 1985
against the applicant.

10. Personal liberty is a very precise fundamental right
and it should be curtailed only when it becomes imperative
according to the peculiar facts and circumstances of the
case.

11. As per the submissions of learned counsel for the
parties, the drawing of the sample does not appear to be in
conformity with the Rules of 22, therefore, at this stage,
these circumstances give rise to a reasonable ground to
presume that the applicant may not be held guilty of the
alleged offence.

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12. The object of keeping the accused persons in
detention during the trial is not punishment. The main
purpose is manifestly to secure the attendance of the
accused. Applicant is in judicial custody since 10.02.2024.
Applicant Viresh Kumar Gupta is a permanent resident of
District Champawat. Therefore, there is no likelihood of
applicant absconding as well. There is nothing on record to
indicate that the applicant had earlier been involved in any
offence relating to Narcotic Drugs and Psychotropic
Substances Act.

13. Heard learned counsel for the parties and
perused the material available on record.

14. Perusal of Rule 10 (1) would reveal that one
sample in duplicate shall be drawn from each packet and
container seized in the present case in total 10 packets
were seized from the applicant but no sample was taken
from each of these 10 packets. Clause 3 of the Rule 10
would come into play on when after taking the sample from
each packet seized then only when the contents of the
packets and bunch together in lots. Thereafter, sample is
to be drawn from a particular lot. Thus, the procedure
prescribed of the drawing sample is envisaged under Rule
10 (i) and 10 (ii) was not complied with

15. On the basis of the above submissions, this
Court is of the view that Rule 10 (1) and (2) of the Rules
have not been followed.

16. Having considered the submissions of learned
counsel for the parties and in the facts and circumstances
of the case, there is no reason to keep the applicant behind

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the bars for an indefinite period, therefore, without
expressing any opinion as to the merit of the case, this
Court is of the view that the applicant deserve bail at this
stage.

17. The bail application is allowed.

18. Let the applicant- Viresh Kumar Gupta be
release3d on bail on his executing a personal bond and
furnishing two reliable sureties, each in the like amount, to
the satisfaction of the Court concerned with the following
conditions:

I) He shall attend the Trial Court regularly, and, he
will not seek any unnecessary adjournment.
II) He shall not directly or indirectly make any
inducement, threat or promise to any person
acquainted with the facts of this case.
III) He shall not leave India without any prior
permission of the Trial Court.

It is clarified that if the applicant misuses or
violates any of the conditions, imposed upon him, the
complainant will be free to move the court for cancellation
of bail.

(ALOK MAHRA, J.)
Dated: 01.05.2025
Kaushal

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