2025:UHC:2777 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL FIRST BAIL APPLICATION No. 2565 OF 2024 Dalip Kumar ...Applicant (In Jail) Versus State of Uttarakhand ….....Respondent Presence: Mr. Raj Kumar Singh, learned counsel for the applicant. Ms. Rangoli Purohit, learned Brief holder for the State. Hon’ble Ashish Naithani, J (Oral) This bail application under Section 483 of B.N.S.S. has been filed on behalf of the applicant, Dalip Kumar, male, aged 28 years S/o Late Chote Lal, R/o House No. 25, Ambedkar Colony, D.L. Road, PS Raipur, District Dehradun who seeks bail in connection with Case Crime No. 416 of 2023, under Sections 8/22/60 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), Police Station Raipur, District Dehradun. 2. The Respondent-State's case in brief is that on September 29, 2023, at around 20:50 hours, SI Raman Bisht, along with his police team, while patrolling from Nalapani Chowk towards Nanurkheda, apprehended the applicant near an empty plot approximately 200 meters before a gas agency. A search of the applicant's scooty (bearing registration number UK07 FF 3760) allegedly resulted in the recovery of 840 capsules of Dicyclomine HCL, Tramadol HCL & Acetaminophen (Pyeevon Spas Plus) from its trunk. Page 1 2025:UHC:2777 3. Each capsule reportedly contained Dicyclomine Hydrochloride IP 10 mg, Tramadol Hydrochloride IP 50 mg, and Acetaminophen IP 325 mg. 4. Based on this recovery, FIR No. 416 of 2023 was registered against the applicant under Sections 8/22/60 of the NDPS Act at Police Station Raipur, District Dehradun. The total weight of the recovered substance was approximately 504 grams (calculated as 840 capsules × 0.60 grams per capsule). 5. Heard learned counsel for the applicant, Mr. Raj Kumar Singh, and for the State, Ms. Rangoli Purohit, Brief Holder. The Court has also perused the material available on record. 6. It has been submitted on behalf of the applicant that he has been falsely implicated in the present case. 7. It is contended on behalf of the applicant that several procedural irregularities and legal infirmities exist in the respondent- State’s case. 8. It is argued that the sequence number of the FIR is mentioned in the arrest memo itself; however, such a detail could only have been procedurally available at a later stage, that is, after the lodging and registration of the FIR. This anomaly creates serious doubt over the genuineness of the respondent-State’s story. 9. The applicant's counsel has emphatically pointed out that despite the alleged recovery taking place in a populated area, there is no independent witness to the search and seizure. Page 2 2025:UHC:2777 10. Further, it is argued that the investigating authorities did not comply with the mandatory provisions of Sections 42, 50, and 57 of the NDPS Act. 11. On behalf of the applicant, it is also highlighted that samples were not taken from each of the 35 strips (containing 24 capsules each) but were randomly collected, which calls into question the representative nature of the samples analysed. 12. It has been further submitted that the applicant has no previous criminal history and is a law-abiding citizen who has been languishing in jail since September 29, 2023. 13. Notably, after the charge sheet was filed on March 29, 2024, and charges were framed on April 25, 2024, the trial has progressed at a sluggish pace. Despite the lapse of more than eight months since charges were framed, only partial testimony of one State’s witness has been recorded. 14. It is also highlighted that the trial court rejected the applicant's bail application on December 5, 2024, without adequately considering the legal infirmities the applicant pointed out. 15. The learned counsel for the State has vehemently opposed the bail application, arguing at the outset that all mandatory provisions of the NDPS Act were duly complied with during the applicant's search, seizure, and arrest. 16. As regards the absence of independent witnesses, it has been submitted that efforts were made to secure the presence of passersby during the recovery proceedings; however, none were willing to come forward, allegedly due to apprehension of being entangled in court proceedings. 17. The State has further contended that the recording of the witnesses' oral testimony is presently in progress, and it is presumably Page 3 2025:UHC:2777 apprehended that releasing the applicant on bail at this stage might afford him an opportunity to abscond or influence key witnesses. 18. After carefully considering the submissions made by both parties and scrutinising the materials on record, this Court notes several aspects that require consideration when adjudicating the present bail application. 19. Firstly, the recovery in the instant case is shown to have been made from the trunk of a two-wheeler, which was being driven by the applicant. However, the search and seizure memo, as well as the arrest memo, reveal certain inconsistencies. 20. A circumstance that materially dents the respondent-State’s narrative is the mention of FIR No. 416 of 2023 in the arrest memo, notwithstanding the admitted position that the FIR came to be registered only at 22:37 hours on 29.09.2023, whereas the arrest is shown to have been effected nearly two hours earlier, at 20:50 hours. Ordinarily, the FIR number is generated only upon its formal registration in the general diary of the police station; its presence in an arrest memo prepared prior to such registration raises a serious procedural incongruity. This suggests either ante-timing of the arrest documents or the possibility that the recovery and associated paperwork were post-facto constructed. The doubt is further accentuated by the absence of a contemporaneous inventory report duly prepared and sealed at the spot. No explanation is forthcoming as to why the seized items were not inventoried before independent witnesses or whether any effort was made to draw such an inventory in compliance with statutory safeguards. Given the rigour of procedural compliance required under the NDPS Act, particularly in view of the presumptions under Sections 35 and 54, such infirmities strike at the root of the State’s case. 21. Secondly, it has been specifically asserted that no independent witness was associated with the recovery, despite the Page 4 2025:UHC:2777 alleged incident having taken place in a densely populated locality. Although the respondent-Statecontends that passersby declined to cooperate, the complete absence of any public witness casts a shadow on the credibility of the recovery process. It is also undisputed that all witnesses to the recovery are police personnel. 22. Thirdly, the defence seriously questioned compliance with Section 50 of the NDPS Act. There is no material on record to indicate that the applicant was informed of his legal right to be searched in the presence of a Gazetted Officer or Magistrate. Moreover, no effort appears to have been made by the arresting team to ensure such presence. Given the mandatory nature of this safeguard, its non- compliance vitiates the credibility of the seizure. 23. Fourthly, the applicant has remained in judicial custody since 29.09.2023. Charges were framed on 25.04.2024, but as of now, only two of State’s witnesses have been partially examined. Despite the lapse of several months, the trial has not progressed meaningfully. 24. It is also relevant that the applicant has no prior criminal history and is a permanent resident of the area, with no reasonable apprehension of absconding or tampering with evidence. Continued incarceration, in these circumstances, would amount to pre-trial punishment. 25. This Court is cognizant of the restrictions imposed by Section 37 of the NDPS Act on granting bail in cases involving commercial quantities of narcotic drugs or psychotropic substances. However, the Supreme Court, in several decisions, has held that prolonged incarceration without a trial being concluded within a reasonable time frame can be grounds for bail, even in NDPS cases. In the present case, the applicant has already spent a significant period in custody, and the trial is progressing at a slow pace. Page 5 2025:UHC:2777 26. Furthermore, the Supreme Court in Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1 has emphasised strict compliance with the procedural safeguards provided under the NDPS Act, given its stringent penal provisions. The absence of independent witnesses in a populated area, the alleged discrepancy in the timing of the FIR registration vis-à- vis the arrest memo, and concerns about sampling methodology are factors that cannot be overlooked. 27. The purpose of bail is not punitive but preventive. It is meant to secure the accused's presence during trial while ensuring that personal liberty, which is a fundamental right under Article 21 of the Constitution, is not unnecessarily curtailed. In the present case, the applicant is a permanent resident of the address mentioned in the bail application, has no previous criminal antecedents, and has already undergone significant incarceration during the pendency of the trial. 28. This Court also notes that while a commercial quantity of the substance is alleged to have been recovered, there is no material to suggest that the applicant is a habitual offender or part of a larger narcotic syndicate. As per the police investigation, no substantial assets or properties were found in the name of the applicant or his family members, except for one house registered in the name of his late father. ORDER Considering the totality of circumstances, including the applicant's prolonged incarceration, the sluggish pace of trial, concerns regarding procedural compliance with the provisions of the NDPS Act, and the absence of any previous criminal antecedents, this Court is inclined to grant bail to the applicant. The likelihood of the applicant absconding or tampering with evidence appears minimal, especially considering that a significant portion of the respondent-State’s evidence has already been collected and preserved. Page 6 2025:UHC:2777 Accordingly, the bail application is allowed. Let the applicant, Dalip Kumar, S/o Late Chote Lal, R/o House No. 25, Ambedkar Colony, D.L. Road, P.S. Raipur, District Dehradun, be released on bail upon furnishing a personal bond of ₹25,000/- (Rupees Twenty Five Thousand only), along with two sureties of the like amount, to the satisfaction of the court concerned. (Ashish Naithani J.) 09.04. 2025 NR/ Page 7