2025:UHC:2249 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL THE HON’BLE SRI JUSTICE ASHISH NAITHANI 26th March, 2025 FIRST BAIL APPLICATION NO. 2166 of 2024 Nandan Singh …Applicant Versus State of Uttarakhand …Respondent Counsel for the Applicant : Mr. B.M. Pingal, learned counsel. Counsel for the State : Mr. K.S. Bora, Deputy Advocate General. Hon’ble Ashish Naithani, J. The present Bail Application has been moved by the applicant-Nandan Singh, aged about 42 years (S/o Bhawan Singh, R/o Village Bedichula, Police Station Mukteshwar, District Nainital). The applicant is in judicial custody in connection with FIR/Case Crime No. 103 of 2024, registered at Police Station Kathgodam, District Nainital, under Sections 8/20/60 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. Heard Mr. B.M. Pingal, learned counsel for the applicant and Mr. K.S. Bora, learned Deputy Advocate General for the State and perused the record. 3. The main contention on behalf the applicant is that proper compliance, regarding the sample specimen, that is to be taken from the contraband alleged to be seized, has not been properly followed. It is contended that, though the contraband, named as Charas, which has been alleged to have been seized from the applicant, is 2025:UHC:2249 2 above commercial quantity, i.e. 3 kilos and 14 grams, and that at the time of the seizure it is said to be packed in three bags, and as per the recovery memo, the alleged contraband, named Charas, is in shape of sticks (batti) and as per law, sampling in such cases should be done by taking small quantities from each portion of the contraband; herein in this case, the samples are various in number, and that too in the shape of sticks, and in colloquial language, it is known as batti. Yet, it is evident, as per the records of the State, that only 100 grams of the seized contraband has been chosen for sampling i.e. not enough, and violates the mandates of sampling, as providing under the NDPS Act. 4. It is also contended that as per mandatory provisions of Section 52(A) of the NDPS Act, compliance is not met with. 5. The applicant is languishing in jail since 12.09.2024. 6. Section 52 (A) of the NDPS Act reads as under: “52A Disposal of seized narcotic drugs and psychotropic substances - (1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified. (2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized 2025:UHC:2249 3 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 description, quality, quantity, mode of packing, marks, numbers or such other identifying 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) Where an application is made under sub - section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances and any list of samples drawn under sub - section (2) and certified by the Magistrate, as primary evidence in respect of such offence.” 7. Another contention raised on behalf of the applicant is that in the present matter, the contraband, so alleged to have been seized from the applicant-Nandan Singh, had been seized on 10.09.2024, yet till today, i.e. even after passing of six months from the date of seizure of the contraband, the FSL report is yet to be taken under record. 8. On the other hand, learned Deputy Advocate General for the State has vehemently opposed the present 2025:UHC:2249 4 bail application, contending that the offense committed by the applicant is grave and falls within the category of commercial quantity under the NDPS Act, 1985, thereby attracting strict liability and stringent conditions under Section 37 of the Act. It is submitted that 3 kilos and 14 grams of Charas was recovered from the applicant's possession, and such a huge quantity of contraband has severe societal implications, particularly concerning drug trafficking and substance abuse issues. 9. After hearing learned counsel for the parties and on the perusal of the record, at the face of it, it is evident that till date, the FSL report has not been filed. So it cannot be said with certainty, that the alleged contraband, which has allegedly been seized from the possession of applicant/ accused on 12.09.2024, is charas, as defined in Section 2(iii)(a) of the NDPS Act. As per Section 2(iii)(a) of the NDPS Act, charas is defined as : “(iii) “cannabis (hemp)” means— (a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;” 10. The notification specifying small quantity and commercial quantity, as per sub-clause iv(a) and XXIII (a) of Section 2 of the Act is mentioned in Serial No. 23 of the Table. The small quantity of charas is mentioned as 100 grams, whereas commercial quantity is mentioned as 1 kilos. 11. Since the punishment stipulated under NDPS Act depends on the quantity of the contraband, it is imperative that the weight of the contraband must be specific. 2025:UHC:2249 5 Section 20 of the NDPS Act deals with punishment for contravention in relation to cannabis plant and cannabis. Section 20, insofar as it is relevant, the same reads as under: “20. Punishment for contravention in relation to cannabis plant and cannabis.—Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,— (a) …… (b) ….. (i) ….. (ii) where such contravention relates to sub-clause (b),— (A) and involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both; (B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees; (C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.” 12. That is why it is essential, firstly to establish the weight of the contraband so seized. Secondly, the mandatory provisions of seizure and search must be followed. Thirdly, sampling of the contraband must be done in such a manner that it can be said that no part of the seized contraband is left without procedure for forensic testing. 13. While the offense alleged against the applicant is of a serious nature, it is well settled that bail cannot be 2025:UHC:2249 6 denied solely on the gravity of the allegations, particularly when serious doubts exists regarding the State's ability to prove its case at trial. 14. In the present matter, when at the face of it, the Court cannot assess and evaluate the chemical composition, or the result of the contraband so seized i.e. charas, and in the absence of FSL report, the grounds for bail are felt to be sufficient at this juncture. 15. In view of the considerations mentioned above, this Court finds that the applicant has made out a prima facie case for the grant of bail. Consequently, the bail application is allowed. 16. Let the applicant – Nandan Singh be released on bail on his executing a personal bond and furnishing two reliable sureties, each in the like amount, to the satisfaction of the court concerned. ___________________ ASHISH NAITHANI, J. Dt: 26.03.2025 Shiksha SHIKSHA BINJOLA Digitally signed by SHIKSHA BINJOLA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2c24 b5aa08b09c12f21822fbd40bf639b1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A542 D7FF0A9BED00E67B5283D205F18FE29BDF5DD9 , cn=SHIKSHA BINJOLA Date: 2025.03.27 12:22:30 +05'30'