2025:UHC:2665 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL THE HON’BLE SRI JUSTICE ASHISH NAITHANI FIRST BAIL APPLICATION NO. 2574 of 2024 Shanti Prasad Bhatt …Applicant Versus State of Uttarakhand …Respondent Counsel for the Applicant : Mr. Pankaj Tangwan, learned counsel. Counsel for the State : Mr. Vipul Panuli, A.G.A. Hon’ble Ashish Naithani, J. This is an application seeking bail in connection with FIR No. 36 of 2023 and FIR No. 40 of 2024, both registered under Sections 8, 20, and 60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’), at Police Station Purola, District Uttarkashi. 2. As per the prosecution case, on 28.11.2024, the applicant was allegedly found in possession of 2 kilograms and 16 grams of charas while driving a Mahindra Bolero vehicle bearing registration number UK07TB3305 near Mori Road, District Uttarkashi. A police team intercepted the vehicle, and the search allegedly yielded the recovery of contraband from a bag inside the vehicle. The applicant, along with two other persons, was arrested on the spot. 1 2025:UHC:2665 3. The applicant’s case rests on the contention that he did not know about the contraband, as he had rented out the said vehicle to one Yunus Ahmed vide a notarised agreement dated 09.11.2024. According to the applicant, on the day of the incident, he was merely following Yunus Ahmed’s instructions to transport two individuals along with a bag to Dehradun. He was wholly unaware of the contents of the said bag. 4. It is further contended that the applicant has no criminal antecedents and suffers from chronic medical conditions, including hypertension and diabetes. He asserts that the requirements of Section 50 of the NDPS Act were not adhered to during the search and seizure process, and that no independent witness was associated with the recovery. 5. The State, opposing the bail, relies upon the recovery memo and statements of police personnel to establish conscious possession. It is argued that the contraband was recovered from within the vehicle driven by the applicant and that the circumstances point towards his knowledge and involvement. 6. The State also submits that although independent witnesses were attempted to be secured, none could be found at the relevant time. Further, it is urged that the release of the applicant at this stage would be detrimental to the ongoing investigation. 7. The applicant, in response, reiterates that his role was limited to transportation at the behest of the person to whom the vehicle had been leased, and that the prosecution case lacks independent corroboration. 2 2025:UHC:2665 8. Heard learned counsel for the parties and perused the record, including the case diary and material placed before the Court. 9. The Court has carefully considered the material placed on record. The compliance with mandatory procedural safeguards is of paramount importance under the NDPS Act. 10. In Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609, the Constitution Bench of the Hon’ble Supreme Court reiterated that the right under Section 50 of the Act is not a mere formality but a substantive safeguard, and non- compliance renders the search and recovery illegal. In the present case, no material has been produced to establish that the applicant was informed of his right to be searched before a Magistrate or a Gazetted Officer. The recovery appears to have been made in the presence of only police personnel 11. The Court has carefully considered the material placed on record. The compliance with mandatory procedural safeguards is of paramount importance under the NDPS Act. 12. In the present case, no material has been produced to establish that the applicant was informed of his right to be searched before a Magistrate or a Gazetted Officer. The recovery appears to have been made in the presence of only police personnel. 13. The concept of ‘conscious possession’ under Sections 35 and 54 of the NDPS Act, while allowing presumptions against the accused, places an initial burden upon the prosecution to establish foundational 3 2025:UHC:2665 facts. 14. In Noor Aga v. State of Punjab, (2008) 16 SCC 417, the Hon’ble Supreme Court held that the prosecution must first prove that the accused had dominion and knowledge over the contraband; only then does the burden shift to the accused to rebut the presumption. 15. In the instant matter, the notarised agreement dated 09.11.2024, which leases the vehicle to Yunus Ahmed, casts doubt on the applicant’s control over the bag containing contraband. 16. The Hon’ble Supreme Court, in Rabi Prakash v. State of Odisha, 2023 SCC OnLine SC 63, considered a case involving the commercial quantity of contraband and granted bail where there was no independent witness to the recovery, Section 50 compliance was doubtful, and no material was placed to establish conscious possession. 17. The Court held that the mere presence of contraband in proximity to the accused is insufficient without satisfying the foundational burden under Sections 35 and 54 of the Act. 18. The factual matrix of the present case bears notable similarity, warranting parity in approach. 19. Moreover, the case record does not reflect any forensic analysis of the seized substance to date. The absence of such corroborative evidence weakens the prosecution's case further. While the alleged quantity is commercial, the settled position of law remains that mere recovery is insufficient without proper procedural compliance and evidentiary integrity. 4 2025:UHC:2665 20. In Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, it has been held that confessional statements to police officers under the NDPS Act are not admissible in evidence unless they meet the rigor of Section 25 of the Evidence Act. 21. As regards the rigours of Section 37 of the NDPS Act, the Court must be satisfied on twin counts: (i) that there are reasonable grounds to believe the accused is not guilty, and (ii) that he is not likely to commit any offence while on bail. 22. In Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798, the Apex Court emphasised that such satisfaction must be based on substantive material. 23. In the present case, contradictions in the recovery memo, lack of independent witnesses, and procedural lapses create reasonable doubt about the prosecution’s case and militate against the applicant’s continued detention. 24. The applicant is stated to be a permanent resident of Dehradun with no prior involvement in criminal cases. He is suffering from documented health ailments and is reportedly the sole earning member of his family. No material has been placed to suggest that he has either attempted to abscond or influence witnesses during his incarceration. 25. In light of the above factual and legal analysis, this Court finds that the applicant has made out a case for bail. The Court is satisfied that the twin conditions under Section 37(1)(b) stand fulfilled and 5 2025:UHC:2665 that his release, subject to suitable conditions, will not prejudice the trial or the interests of justice. 26. Accordingly, the bail application is allowed. 27. Let the applicant, Shanti Prasad Bhatt, is directed to be released on bail in connection with FIR No. 36 of 2023 and FIR No. 40 of 2024, registered at Police Station Purola, District Uttarkashi, on furnishing a personal bond and two sureties of like amount to the satisfaction of the Court concerned. The applicant shall cooperate with the investigation and shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case. ___________________ ASHISH NAITHANI, J. Dt: 28.03.2025 SB 6 SHIKSHA BINJOLA Digitally signed by SHIKSHA BINJOLA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2 c24b5aa08b09c12f21822fbd40bf639b1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A 542D7FF0A9BED00E67B5283D205F18FE29B DF5DD9, cn=SHIKSHA BINJOLA Date: 2025.04.09 11:10:59 +05'30'