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Iqlas Khan Vs. State of Uttarakhand - (High Court of Uttarakhand) (13 Jul 2020)

Evidence of a public officer cannot be thrown only on basis that he is a police officer

MANU/UC/0134/2020

Narcotics

Present bail application has been filed under Section 439 of the Code of Criminal Procedure, 1973 for grant of regular bail in connection with FIR registered with Police Station for the offence punishable under Sections 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the Act, 1985').

During search, the present applicant was found to be in possession of Smack (Diacetylmorphine), which was put in his hand bag. The applicant was arrested. The recovered contraband produced before the Court concerned and the whole recovered contraband was sent to the Forensic Science Laboratory. According to the report of Forensic Science Laboratory, the tested material was Smack (Diacetylmorphine). The charge sheet was submitted after investigation.

The learned counsel for the Applicant submits that, the Applicant has been falsely implicated; Smack is not a narcotic drug as the same is nowhere described in its Schedule.

Smack is a slang term for Heroin, a narcotic that goes by many names i.e. tar, dope, junk etc. All these names mean the same thing. Smack, sometimes also called Black Tar Heroin, is an illegal form of a strong opioid drug. Heroin comes from a natural flowering plant called a poppy. Heroin (Smack) is a white or brown powder or a black, sticky goo.

As per the Table prepared in terms of Section 2 (xxiii a) and Section 2 (vii a) of the Act, 1985, 5 gram of Heroin (Diacetylmorphine) is small quantity and greater than 250 gram is commercial quantity (Entry No. 56). The preamble of the Act, 1985 shows that, the object of this Act is to consolidate and amend the law relating to narcotic drugs and to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances etc.

Further, in the case of Megh Singh vs. State of Punjab, the Hon'ble Supreme Court held that, a bare reading of Section 50 of Act shows that, it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag, or premises. In the case of Makhan Singh vs. State of Haryana, the Apex Court has held that, compliance which Section 50 of the Act, 1985 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container etc., which the accused may be carrying ought to be searched.

Considering the alleged Smack was recovered from the bag, held by the Applicant and not in his personal search, it can be said that the compliance of Section 50 of the Act, 1985 was squarely not applicable in the instant case.

The submission of the learned counsel for the Applicant is that, the provision of Section 57 of the Act, 1985 was not complied with. In Babubhai Odhavji Patel Vs. State of Gujrat, Supreme Court has held that, Section 57 of the Act, 1985 is not mandatory but it is only directory. According to the FIR, in spite of an endeavour, no public witness could be secured. The law is well settled that, the evidence of a public officer cannot be thrown only on the ground that he is a police officer.

An order of bail cannot be granted in an arbitrary or fanciful manner. A ratio decidendi of the judgment of Hon'ble Apex Court in Anil Kumar Yadav Vs. State (N.C.T.) of Delhi and another, is that in serious crimes, the mere fact that the accused is in custody for more than one year, may not be a relevant consideration to release the accused on bail.

In the light of the facts and circumstances of the present case and from the perusal of the evidences, collected during investigation so far, it prima facie appears that, the Applicant was involved in this offence. No reason is found to falsely implicate the Applicant/accused person. Therefore, there is no good ground to release the applicant-accused person on bail at this stage. The bail application is rejected accordingly.

Relevant : Megh Singh vs. State of Punjab, MANU/SC/0708/2003, Makhan Singh vs. State of Haryana, MANU/SC/0479/2015, Anil Kumar Yadav Vs. State (N.C.T.) of Delhi and another, MANU/SC/1454/2017

Tags : BAIL   ENTITLEMENT  

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