UJAGAR SINGH Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Petitioner has filed instant petition under Sec. 439 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC') for grant of bail in case FIR No. 86 of 2017, dated 30th Oct., 2017, under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'NDPS Act'), registered at Police Station Rajgarh, District Sirmaur, H.P.

(2.) Brief facts of the case are that the petitioner was arrested on 29th Nov., 2017 for having found in possession of charas, weighing 1.007 kg, during search of hotel/shop run by him at Khairi in District Sirmaur, on the basis of secret information received by the police.

(3.) Learned counsel for the petitioner has pleaded that there is no compliance of Sec. 42 (2) of the NDPS Act. There is noncompliance/violation of Sec. 50 of the NDPS Act as joint consent memo has been prepared by the raiding police party of two accused persons and as has been held in case titled State of Himachal Pradesh versus Bishan Dutt, 2016 2 ShimLC 1160, there must be individual communication with respect to search of each and every person and as the provisions of the NDPS Act are stringent in nature providing severe punishment, strict compliance of procedure and process, instead of substantial compliance, is must to be followed and as the memo of consent prepared under Sec. 50 of the NDPS Act is defective, there is every likelihood of failure of prosecution case and the petitioner is in jail since ten months, he is entitled for bail as rigours of Sec. 37 of NDPS Act will not be applicable in present case for peculiar circumstances and failure of prosecution in complying with the mandatory provisions of the said Act.