YUGAL GOSWAMI Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) Applicant Yugal Goswami, who is in jail in connection with F.I.R. No.255 of 2021 for the offences punishable under Ss. 8/20 of NDPS Act, registered at P.S. Kathgodam, District Nainital, has sought his release on bail.

(2.) Learned counsel for the applicant would submit that as per the prosecution story there was prior information to the Police from S.O.G. that one vehicle bearing no.UK08TB2389 is being run in a suspicious manner and when the police party headed by Sub Inspector stopped the vehicle then there were four people sitting inside the vehicle and from the possession of the applicant/accused contraband was allegedly recovered. He would submit that the information received from the S.O.G. was not reduced in writing nor a copy of the same was sent to the superior officials within a period of 72 hours, which creates a doubt in the prosecution story. He would further submit that the compliance of mandatory provision of Sec. 50 of NDPS Act has not been done in true spirit as the FIR itself clearly show that the applicant/accused was merely asked if he would like to get himself searched from any Gazetted Officer or Magistrate and he was not made aware with regard to the fact that it is his statutory right to be searched before a Gazetted Officer or a Magistrate. To buttress his submissions, he would refer a judgment of Hon'ble Apex Court in re Vijaysingh Chandubha Jadeja vs. State of Gujarat (2011) 1 SCC 609 and would submit that it was imperative on the part of the Police party to tell the applicant/accused that he has a right to be searched before a Gazetted Officer or Magistrate if the police party was having prior information from S.O.G. He would refer to para 32 of the judgment, wherein the Hon'ble Apex Court has observed that "We also feel that though Sec. 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to search proceedings, it may verily strengthen the prosecution as well."

(3.) He would further submit that in view of violation of mandatory provisions of NDPS Act in the present case, the chances of conviction of the applicant/accused are remote and bleak and thus no purpose would be served by keeping the applicant/accused behind bars during the pendency of trial. He would further submit that the applicant is languishing in jail since 5/11/2021 and has no criminal history.