Bombay High Court
Ram Ashok Gavade vs The State Of Maharashtra on 8 September, 2021
Bench: M. G. Sewlikar
ba1108.21.odt
-1-
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
BAIL APPLICATION NO. 1108 OF 2021
Vishwanath @ Kolhiya s/o Pandit Pimple Applicant
Versus
The State of Maharashtra Respondent
Mr. K.A. Ingle, Advocate for the applicant.
Mrs. D.S. Jape, APP for respondent/State.
WITH
BAIL APPLICATION NO. 870 OF 2021
Sunil s/o Shivaji Pawar Applicant
Versus
The State of Maharashtra Respondent
Mr. Wankhade, Advocate for the applicant.
Mrs. D.S. Jape, Advocate for the respondent/State.
WITH
BAIL APPLICATION NO. 820 OF 2021
Ram Ashok Gavade Applicant
Versus
The State of Maharashtra Respondent
Mr. Satej Jadhav, Advocate for the applicant.
Mrs. D.S. Jape, APP for the State.
CORAM : M.G. SEWLIKAR, J.
DATE : 8th September, 2021.
::: Uploaded on - 09/09/2021 ::: Downloaded on - 10/09/2021 04:06:47 :::
ba1108.21.odt
-2-
PER COURT :
1. All these applications are disposed of by a common order
since they arise out of the same crime.
2. Heard Shri Ingle, learned counsel for applicant in Bail
Application No. 1108/2021, Shri Wankhade, learned counsel for
applicant in Bail Application No. 870/2021, Shri Satej Jadhav,
learned counsel for applicant in Bail Application No. 820/2021 and
Mrs. Jape, learned APP for the State.
3. Facts leading to these applications are that informant
who is a Police Inspector received a tip off that all the applicants were
transporting contraband articles i.e. ganja for sale. Accordingly,
informant constituted a team which raided the spot of the incident
i.e. old railway gate, Chikalthana. Accordingly, one Innova Car
bearing No. MH 20 BY 1954 was spotted by the team. It was signaled
to stop. On taking search of the said car, 51 sealed packets were
found emitting strong odour. Usual procedure of taking samples was
followed. All the three applicants were occupants of the car. After
completing the usual procedure of taking samples, First Information
::: Uploaded on - 09/09/2021 ::: Downloaded on - 10/09/2021 04:06:47 :::
ba1108.21.odt
-3-
Report came to be lodged. After completion of investigation, charge-
sheet came to be fled.
4. Shri Jadhav, learned counsel for the applicant submitted
that the applicants were not in conscious possession of the
contraband articles. He further submitted that charge-sheet has
been fled without fling CA report. Charge-sheet is, therefore,
incomplete. On the basis of such incomplete charge-sheet, Court
cannot prima facie form an opinion that the articles which were
found in the car were contraband articles. For this purpose he
placed reliance on the judgment in the case of Sunil Vasantrao
Phulbande and another Vs. State of Maharashtra reported in 2002(3)
Mh.L.J. 689. In this judgment, the learned Single Judge of this
Court has observed thus :-
"12. In the instant case, it is not in dispute that
report of chemical Analyser is the foundation on the
basis of which Magistrate can proceed to take
cognizance of the offences. The contraband, which is
seized in the present case, is Ganja and unless and
until sample, which was drawn by the prosecution,
conforms with the article, which is seize during
investigation, i.e. Ganja, the Magistrate is not in a
position to proceed to take cognizance of the offence.
The charge-sheet/report as contemplated under
Section 173(5) of the Code, forwarded to the
Magistrate should be such that on the basis of which
Magistrate should be able to proceed further and
::: Uploaded on - 09/09/2021 ::: Downloaded on - 10/09/2021 04:06:47 :::
ba1108.21.odt
-4-
take cognizance. The documents, which are required
to be accompanied with the charge-sheet/report as
contemplated under sub-section (5) of section 173 of
the Code, therefore, assume importance, without
which charge-sheet/report submitted by the Police
under section 173 of the Code would be incomplete
and Magistrate also may not be in a position to
proceed to take cognizance on the basis of the said
report. The concept of fling of charge-sheet by the
Police in the Court must fulfl requirement of section
173(2) and (5) of the Code and it is only after such
compliance, report which is fled by the Police in the
Court can be construed as complete report under
section 173(2) and (5) of the Code.
Having regard to these observations, it is clear that
charge-sheet fled without CA report is incomplete. Accused are,
therefore, entitled to be released on bail.
5. Learned APP submitted that this point was not raised
before the Sessions Court. This submission is stated to be rejected.
Simply because this point was not raised
before the Trial Court does not debar the applicants from raising this
point again. In this view of the matter, following order is passed :-
ORDER
i) All the applications are allowed.
ii) Vishwanath @ Kolhiya s/o Pandit Pimple,
applicant in Bail Application No. 1108/2021, Sunil
ba1108.21.odt
s/o Shivaji Pawar, applicant in Bail Application No.
870/2021 and Ram Ashok Gavade, applicant in Bail
Application No. 820/2021 be released on PR bond of
Rs. 1,00,000/- (Rs. One Lac only) each with one
solvent surety each in the like amount in
connection with Crime No. 0011/2021 registered
with MIDC CIDCO Police Station, District
Aurangabad, for the offences punishable under
Sections 8(c), 20(b)(ii)(c), 29 of the Narcotic Drugs
and Psychotropic Substances Act, on condition that
they shall report to the concerned police station
every 15 days and shall provide their phone
numbers to the Court and the concerned police
station.
iii) Applications stand disposed of.
( M. G. SEWLIKAR )
Judge
dyb
