HIGH COURT OF UTTARAKHAND AT NAINITAL
Second Bail Application No. 236 of 2024
Rohit Kumar Tamta ….....Applicant
Versus
State of Uttarakhand ….….Respondent
Present:-
Mr. Anand Kumar Pandey, Advocate for the applicant.
Ms. Manisha Rana Singh, AGA for the State.
Hon’ble Ravindra Maithani, J. (Oral)
Applicant Rohit Kumar Tamta is in judicial
custody in FIR No. 86 of 2021 dated 16.09.2021, under
Sections 8, 60 & 20 of the Narcotic Drugs and Psychotropic
Substances Act, 1985, Police Station Tanakpur, District
Champawat. He has sought his release on bail.
2. This is second bail application of the applicant.
His first bail application has been dismissed as withdrawn
by this Court on 01.04.2024.
3. Heard learned counsel for the parties and
perused the record.
4. According to the prosecution, on 16.09.2021,
Charas
2.300 kgs. was allegedly recovered from the
possession of the applicant, which was in strip form.
5. Learned counsel for the applicant would submit
that according to the prosecution case, the allegedly
recovered contraband was in strip form, but the samples
2
were not taken from each of the strips, instead, collectively,
100 gms. sample have been taken, which cannot be termed
as representative sample. It is also the case of the applicant
that he has been falsely implicated; nothing was recovered
from him; there is no independent witness.
6. In support of his contention, learned counsel for
the applicant has placed reliance on the law, as laid down in
the case of Gaunter Edwin Kircher Vs. State of Goa,
Secretariat Panaji, Goa (1993)3 SCC 145. In that case, two
pieces of 07 Grams and 05 Grams each were recovered from
the accused, but only a piece of 05 Grams was sent for
forensic examination. Under those circumstances, Hon’ble
Supreme Court observed that, “From this report alone it
cannot be presumed or inferred that the substance in
the other piece weighing 7 gms also contained Charas. It
has to be borne in mind that the Act applies to certain
narcotic drugs and psychotropic substances and not to
all other kinds of intoxicating substances. In any event
in the absence of positive proof that both the pieces
recovered from the accused contained Charas only, it is
not safe to hold that 12 gms of Charas were recovered
from the accused. In view of the evidence of PW 1 it
must be held that the prosecution has proved positively
that Charas weighing about 4.570 gms was recovered
from the accused.”
3
7. Learned State Counsel was required to get
instructions. Today, learned State Counsel would submit
that there were multiple strips, which were recovered from
the possession of the applicant, but, collectively, 100 gms.
sample was taken, and it was not taken from each of the
strips.
8. Since, the allegedly recovered contraband was in
strip forms and only 100 gms. of sample was taken
randomly and not from each of the strips, it cannot be said
as representative sample of the allegedly recovered
contraband.
9. Having considered, this Court is of the view that
it is a case fit for bail and the applicant deserves to be
enlarged on bail.
10. The bail application is allowed.
11. Let the applicant 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.
(Ravindra Maithani, J)
25.10.2024
Avneet/