Uttarakhand High Court
BA1/377/2025 on 30 June, 2025
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
Office Notes,
SL. Date reports,
No. orders or COURT'S OR JUDGE'S ORDERS
proceedings
or directions
and
Registrar's
order with
Signatures
BA1 No. 377 of 2025
Hon'ble Rakesh Thapliyal, J.
1. Mr. V.K. Kaparuwan, learned counsel
and Ms. Sangeeta Bhardwaj, learned
counsel for the applicant.
2. Mr. Himanshu Sain, learned Brief
Holder for the State.
3. Both the applicants Sunder Kumar @
Surender, S/o Atar Singh and Devendra, S/o
Rajpal, who are languishing in jail since
29.12.2024 are praying for regular bail in
relation to FIR dated 29.12.2024, bearing
FIR No. 26 of 2024 registered at P.S.
Narendra Nagar, District Tehri Garhwal,
wherein the applicants have been implicated
for the offence punishable under Sections
8/20/29 and 60 of the NDPS Act.
4. Learned counsel for the applicants
submits that the recovery shown was a joint
recovery and the alleged contraband which
was shown to be recovered from the present
applicants is 2kg 200 gm of charas. He
further submits that there is no proper
substantial compliance of Section 52A of the
NDPS Act, since, the inventory was not
prepared in the prescribed form 4 under
Rule 8 of NDPS Rules 2022 and,
furthermore, there is no proper certification
since the concerned Magistrate put an
endorsement of ‘seen’ in the inventory
report. He submits that putting
endorsement of ‘seen’ by the concerned
Magistrate for the purpose of certification of
the inventory is completely against the
mandate of the rules which itself reveals
that no proper application was moved by
the concerned official for the purpose of
certification along with inventory. He
submits that though non compliance of
Section 52A is not fatal and will not vitiate
the trial but this aspect can be looked into
for considering the bail application. He
further submits that both the applicants
have a criminal history of one case relating
to the NDPS Act which pertains to non
commercial quantity in which both the
applicants have been enlarged on bail. He
further argued that since alleged contraband
which is shown to be recovered from both
the applicants are commercial one,
therefore, condition as stipulated under
Section 37 of the Act has to be dealt with.
5. In reference to this, learned counsel
for the applicant submits that since there is
no substantial compliance of Section 52A of
the NDPS Act, which itself reveals that the
applicant is not guilty of the offence as
alleged. He submits that in the previous
case of similar nature the applicants are
already bailed out.
6. On the other hand, learned A.G.A.
opposed the bail application and submits
that in term of Section 37 of the Act, the
applicants does not deserve bail, as the
alleged contraband which is shown to be
recovered from the applicants is commercial
one.
7. After hearing the learned counsel for
the parties, and further taking into
consideration that inventory so prepared
was not in the proper form as prescribed in
form 4 in terms of Rule 8 of NDPS Rules
2022, and, furthermore, there is no proper
certification of the Magistrate concerned,
since only there is endorsement of ‘seen’ in
the inventory report which itself reveals that
there is no separate application for seeking
certification of the inventory, this Court,
primarily, of the view that there are
reasonable ground that the applicants are
not guilty of the offence as alleged. Apart
from this, in earlier criminal case the
applicant are also bailed out which pertains
to non commercial quantity, therefore, this
Court is of the view that if the applicants are
bailed out they will not indulge in any such
criminal activities during bail, however, this
Court is of the view that some stringent
condition should be imposed while granting
bail.
8. In view of the discussion and
observations as made above, this Court is of
the view that since twin conditions as
stipulated under Section 37 of the NDPS Act
are complied with and, as such, both the
applicants deserve for bail.
9. Accordingly, without expressing any
opinion on the merits of the case, the bail
application is allowed.
10. Let both the applicants- Sunder
Kumar @ Surender and Devendra be
released on bail on their executing
personal bond and furnishing two reliable
sureties by each one of them in the like
amount to the satisfaction of the court
concerned.
12. It is made clear that after being
released on bail the applicant shall join
the proceeding of the trial court on each
and every date and will not seek
unnecessary adjournment failing which
the prosecution is free to move bail
cancellation application. It is further
directed that the trial court will proceed
with the trial without being influenced
with the observations, as made above.
(Rakesh Thapliyal, J.)
30.06.2025
Parul