DEEWAN SINGH Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) Applicant Deewan Singh is in judicial custody in FIR No.0030 of 2023, under Ss. 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the Act'), Police Station Lamgarha, District Almora. He has sought his release on bail. 3. According to the FIR, on 1/11/2023, 1.200 Kg charas was recovered from the possession of the applicant. In fact, the FIR records that on that date, the Station House Officer ('the SHO') was on patrolling duty along with police personnel when they intercepted the applicant and recovered charas. 4. Learned counsel for the applicant would submit that the entire recovery is bad and it has not been done in accordance with law; the recovery could have been made by the empowered officer as specified under Sec. 42 of the Act. If the officer is not empowered, he should have called the empowered officer at the place of incident, and, thereafter, the investigation would have been done by a separate person. He would submit that the officer joining the recovery team cannot be an Investigating Officer, whereas, it is argued that in the instant case, the SHO, who was the part of the recovery team, himself prepared an inventory report under Sec. 52A of the Act, which means, he has entered into the arena of investigation, which, it is argued, may tend to make Sec. 58 of the Act redundant, which provides punishment for vexatious entry, search, seizure or arrest. 5. Learned State Counsel would submit that it is a case of chance recovery. In such cases, provisions of Ss. 42 and 50 of the Act are not applicable. It is also argued that in the instant case, the provisions of Sec. 42 of the Act would not come into play because it was a recovery from a public place and any officer could have made such search under Sec. 43 of the Act, of such departments, which are mentioned under Sec. 42 of the Act. 6. Although, there is dispute on this aspect because learned counsel for the applicant would submit that officers and departments are specified under Sec. 42 of the Act, and only such officers of such departments may act under Sec. 42 of the Act. 7. Learned State Counsel would also submit that with regard to investigation, there is no specific provision in the Act, therefore, in view of Sec. 51 of the Act, read with Sec. 4 of the Code of Criminal Procedure, 1973 ('the Code'), the provision of Code shall come into play. It is argued that as per Sec. 157 of the Code, a Sub-Inspector may conduct investigation, which has been done in the instant case. 8. It is a stage of bail. Much of the discussion is not expected of. Arguments are being appreciated with the caveat that any observation made in this order shall have no bearing at any subsequent stage of the trial, or in any other proceeding. 9. It is a case of chance recovery. In the case of Sorabkhan Gandhkhan Pathan and Another Vs. State of Gujarat, (2004) 13 SCC 608, the Hon'ble Supreme Court has categorically held that, 'in cases of chance recovery, it is not necessary to follow the procedure contemplated under Ss. 42/50 of the Act.' (Para No.6 of the judgment). 10. According to the State, the investigation is being done by the Sub-Inspector. He was not the part of the recovery team. 11. Insofar as the preparation of the inventory by the SHO is concerned, its effect and legality may fall for scrutiny during trial. It is a case of recovery of commercial quantity of charas. 12. Having considered, this Court does not see any ground, which may entitle the applicant to bail. Accordingly, the bail application deserves to be rejected. 13. The bail application is rejected.