Uttarakhand High Court
Deepak Koli vs State Of Uttarakhand on 11 March, 2025
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
1st Bail Application No. 2661 of 2023
Deepak Koli ......Applicant
Versus
State of Uttarakhand .....Respondent
Hon'ble Ashish Naithani, J (Oral)
The present Application has been filed on behalf of the applicant, Deepak Koli @ D.K. (male), aged about 23, S/o Shri Vasudev Koli, R/o near Sunrise School, Ward No. 24, who is in judicial custody in connection with FIR No. 21 of 2019 for the offence under Sections 420/ 120-B of IPC and 66C & 66D of the I.T. Act, registered at P.S. Cyber Crime, District Dehradun.
2. Heard Mr. Prince Chauhan, learned Legal Aid for the applicant and Mr. S.C. Dumka, learned A.G.A. for the State and perused the record.
3. It was contended on behalf of applicant that in the present matter, 45 ampules of "Diazepam Injections"; 68 Pheniramina Maleate Injections and 15 Bupreorphine Injections have allegedly been recovered from his possession which were shown to have been kept in his bag. As per the schedule appended to in the Act, the recovered contraband named 'Diazepam Injection' falls under the commercial quantity whereas the contraband '15 Bupreorphine Injection' is just little above the commercial quantity.
4. It is said that the alleged recovery was made by the police officials at a public place still no public witness was called for evidence nor any attempt was made to procure 2 the same. It is reiterated that following three contraband articles are shown to have recovered from his possession: -
(i) 45 DIAZEPAM INJECTION
(ii) 68 PHENIRAMINA MALEATE INJECTION
(iii) 15 BUPREORPHINE INJECTION
5. Out of three, it is stated that 68 Pheniramina Maleate Injections do not come under the Narcotic Drugs Psychotropic Substance (NDPS) Act.
6. It is argued on behalf of the applicant that there is gross error in the procedure of arrest and recovery of the accused along with the contraband; recovery has been planted upon the applicant; and he was falsely booked under this Act.
7. Another contention put forth by learned counsel for the applicant is that there was non-compliance of Section 52 and 52A(2) of the NDPS Act, since those mandatory provisions were not compiled with.
8. For the purpose of convenience, Section 52 of the NDPS Act is quoted below:-
"52. Disposal of persons arrested and articles seized-(1) Any officer arresting a person under section 41, section 42 section 43 or section 44 shall, as soon as may be, inform him of the grounds for such arrest. (2) Every person arrested and article seized under warrant issued under sub-section (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.
(3) ...................................."
and
9. Similarly, Section 52A (2) of the NDPS Act which deals with inventory of the NDPS reads as under:-
(1) ....................
(2) Where any [narcotic drugs, psychotropic
substances, controlled substances or conveyances] 3 has been seized and forwarded to the officer-in- charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such [narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their descriptions, quality, quantity, mode of packing, marks, numbers or such other indentifying particulars of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the[narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of-
(a) certifying the correctness of the inventory so prepared, or
(b) taking, in the presence of such Magistrate, photographs of [such drugs, substances or conveyances] and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.
(3) ............"
10. It is contended that the procedure of search, seizure and arrest, as provided under Section 42(2) of the Act has also not comply with; similarly, provisions of Section 43, 50 and 57 of the NDPS Act were not complied.
11. It is further argued that that the applicant is languishing in jail since 27.03.2022; he cannot defend himself by remaining in jail. Thus, it is prayed that the applicant may be enlarged on bail.
12. The bail application has been strongly opposed on behalf of the State by contending that all the relevant and 4 mandatory provisions of the NDPS Act have been complied with, and whatever contentions in favour of the bail that have been placed before this Hon'ble Court by the applicant, are not sustainable.
13. Facts of the case are that on 27.03.2022, the police, for maintaining peace and order, at about 14:30 hours, asked the applicant to stop near New Sunrise School; but as soon as the applicant was asked to stop, he tried to run away; finding suspicion, he was followed and just 20 meters away he was nabbed; upon checking the bag held by him, the contraband articles were recovered from him viz. 45 Diazepam Injections of 10 mg, 68 Pheniramina Maleate Injections of 10 ml and 15 Bupreorphine Injection of 0.3 mg.
14. It is contended by State Counsel that heavy amount of recovery has been made from the possession of the applicant without any explanation; the claim raised by the applicant that he was falsely accused of the contraband seized from his possession, cannot be said to be planted on him; and there is no question of the applicant being falsely implicated in the present matter; further, the inventory was duly prepared as per Annexure-4; and the F.S.L. report clearly indicates that the contraband seized from the applicant viz. Bupreorphine Injection and Diazepam Injection are the scheduled drugs.
15. It is further argued by learned State Counsel that the contentions raised the applicant are incorrect that mandatory provisions of NDPS Act were not followed; and thus, it is contended that it is a serious offence; and contraband so recovered from the applicant is commercial quantity; and that the bail application deserves to be rejected.
516. After hearing the learned Counsel for the parties and on perusal of the record, and without going into the merits of the case and also without going into the details which may affect the merits of the trial, I find that it is a fit case for bail. Firstly, one of the contraband named 'Diazepam' as recovered from the possession of applicant, is not a commercial quantity; and the other contraband Bupreorphine is just little above the commercial quantity; moreover, he is languishing in jail for about 3 years; there are no independent witnesses, though arrest and place of seizure is a public place.
17. Accordingly, bail application is allowed. Let the applicant-Deepak Koli @ D.K. be enlarged on bail on his executing a personal bond of Rs.50,000/- and furnishing two sureties, each of the like amount to the satisfaction of the Court concerned.
18. Pending application, if any, stands disposed of.
(Ashish Naithani, J.) 11.03.2025 Anand