Bombay High Court
Maroti Manikrao Dhepe vs The State Of Maharashtra on 4 May, 2022
Bench: V. V. Kankanwadi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
BAIL APPLICATION NO.188 OF 2022
Maroti S/o Manikrao Dhepe
...APPLICANT
VERSUS
The State of Maharashtra
...RESPONDENT
...
Mr.Swapnil S. Rathi Advocate for Applicant.
Mr.V.S. Badakh, A.P.P. for Respondent-State.
...
CORAM: SMT. VIBHA KANKANWADI, J.
DATE OF RESERVING ORDER : 25th APRIL 2022
DATE OF PRONOUNCING ORDER : 4th MAY 2022
ORDER :
1. Present applicant has been arrested on 10 th July 2021 in
connection with Crime No.161 of 2021 registered with Kotwali
Police Station, Parbhani for the offence punishable under
Sections 20(b)(ii), 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short "NDPS Act"). Applicant has filed
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present application under Section 439 of the Code of Criminal
Procedure.
2. Heard learned Advocate Mr. Rathi for the applicant and
learned APP Mr. Badakh for the respondent - State.
3. It has been vehemently submitted on behalf of the
applicant that co-accused is the mother-in-law of the applicant.
The place where the alleged narcotic drug was found, belongs to
her and she had criminal antecedents under the same Act. She is
84 years old lady and therefore, in order to make inquiry about
her health, the applicant had gone to her house when the raid
was conducted. The applicant has nothing to do with the narcotic
drug. It is stated in the First Information Report (for short "FIR")
that Ganja weighing 27.617 Kg. worth Rs.1,38,085/- was
recovered. The bail has been sought on the ground that there is
no compliance of mandatory provisions of Sections 40, 41, 42,
50 and 50-A of the NDPS Act. Now the investigation is complete
and charge-sheet is filed. The charge-sheet would show that only
station diary entry was taken, which cannot be said to be a
mandatory compliance under Section 42 of the NDPS Act. It was
obligatory on the part of the Police Officer, who received the
information, to send the copy of that information, which he has
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reduced into writing, to the superior officers within 72 hours,
however, the charge-sheet does not say so. Further, it has been
shown that a notice was given to the applicant and co-accused,
as to whether they want the raid to be conducted in presence of
S.D.P.O. Parbhani and whether a Gazetted Officer should remain
present. If we consider the FIR, then it makes a mention about
presence of Naib Tahsildar who has been stated to be Gazetted
Officer, but his presence has not been shown in the said notice.
Their reply has not been taken on the document, however, the
informant and witnesses say that both the accused refused that
the raid be conducted in presence of the Gazetted Officer and
gave nod for the raid or search by the Police Officers. This is not
the proper compliance of Section 50 of the NDPS Act.
4. Learned Advocate for the applicant is relying on the order
dated 26th October 2021 passed by this Court in Bail
Application No.568 of 2021 (Raju Bhavlal Pawar and
others vs. the State of Maharashtra), Sarija Banu (A)
Janarthani alias Janani and another vs. State through
Inspector of Police, 2004, AIR, SCW, 7488, order dated 20th
January 2022 passed by this Court in Criminal Bail
Application No.2295 of 2021 (Sholadoye Samuel Joy vs.
the State of Maharashtra), Arif Khan Alias Agha Khan vs.
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State of Uttarakhand, (2018) 18 S.C.C. 380, and Judgment
in Criminal Appeal No.2 of 1999 passed by this Court on 10 th
December 2010 (Sarubai W/o Malhari Gunthe vs. the State
of Maharashtra), in which the co-accused Sarubai was the
appellant. By the said order, the substantive sentence awarded
against co-accused Sarubai for the offence involved therein, of
three years was reduced by this Court to six months for the
offence punishable under Section 20(b)(i) of the NDPS Act.
5. It was also submitted on behalf of the applicant that since
the charge-sheet has been filed, the custody of the present
applicant is not required. He is ready to abide by the terms of
the bail. It is also pointed out that co-accused Sarubai has been
released on anticipatory bail by the learned Special Judge under
the NDPS Act, Parbhani under Section 438 of the Code of
Criminal Procedure.
6. Per contra, the learned APP strongly objected the
Application and submitted that there is every compliance of the
mandatory provisions of the NDPS Act. The option was given to
the present applicant as well as co-accused Sarubai, whether
they want Gazetted Officer to be present at the time of raid, they
have stated orally that they do not want. It can also be seen
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from the fact that co-accused Sarubai as well as present
applicant appear to be illiterate. They both have given their
thumb marks and present applicant is merely writing his name
as a signature. In such circumstances, much more could not
have been expected from the applicant in writing. Substantial
amount of Ganja has been recovered and therefore, when it is
an offence against the society at large, no sympathy deserves to
be shown.
7. At the outset, it is to be noted that the learned Special
Judge under the NDPS Act appears to have got impressed by the
fact that co-accused Saubai was 84 years old and she was
handicapped. She produced the certificate issued by the Medical
Board. Photographs were also produced which shows that co-
accused Sarubai had lost all the fingers because of leprosy and
taking into consideration those aspects, anticipatory bail was
granted. However, it appears that the earlier background that
she had already been convicted, may be for six months, by this
Court i.e. by reducing her sentence, under Section 20(b)(i) of
the NDPS Act, ought to have been considered by the learned
Special Judge. Even otherwise, that cannot be the ground for
consideration of the relief prayed by the present applicant. His
case will have to be considered independently.
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8. As regards the non compliance of the mandatory
provisions are concerned, it is to be noted that there is a copy of
the communication stating that on 9 th July 2021 an information
was given to Deputy Superintendent of Police, Parbhani by Police
Inspector, Kotwali Police Station, Parbhani that he has received
information about possession of narcotic drug - Ganja by a lady.
He sought permission to conduct raid. That communication does
not say that the information was reduced into writing separately.
However, by the contents of the said communication containing
all those particulars about the information should not be treated
as the information, is a question. Section 42 of the NDPS Act
does not say that FIR will have to be lodged first and then copy
of the same should be forwarded to the superior. Section 42(1)
of NDPS Act requires the person receiving the information to be
recorded in writing. Then Section 42(2) mandates that such
information received by the police has to be forwarded to the
superior officer within 72 hours. The information therefore
contained in the communication by the Police Inspector, Kotwali
Police Station, Parbhani dated 9th July 2021 can be treated, at
this prima facie stage, as the information. Even otherwise also,
Section 42(2) of the NDPS Act does not say that copy of
whatever was reduced in writing should be annexed. Definitely,
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mere entry in the case diary cannot be considered as the
necessary compliance. But here, communication referred in the
charge-sheet, dated 9th July 2021 is not a station diary entry.
Further, on the same day, it appears that S.D.P.O. had granted
permission to conduct raid. Rather S.D.P.O. himself had also
remained present at the time of raid. The facts of the order
passed in Bail Application No.568 of 2021, referred above,
were different and then there was clear non compliance of
Section 42 of the NDPS Act.
9. As regards the personal search as contemplated under
Section 50 of the NDPS Act is concerned, though the learned
Advocate for the applicant is relying on the decision Arif Khan
Alias Agha Khan vs. State of Uttarakhand (supra), the
difference in the facts of that case and this case is that the
search in this case was of the house and not of the personal
search. Hon'ble Supreme Court in catena of Judgments, has held
that the provision of Section 50 of NDPS Act is required to be
complied in case of personal search only but not in case of
search of vehicle, and the said analogy would have to be applied
in case of search in respect of a house and therefore the decision
in Arif Khan Alias Agha Khan vs. State of Uttarakhand
(supra) will not be applicable here. In Arif Khan Alias Agha
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Khan vs. State of Uttarakhand (supra) after taking note of
the earlier Judgment, it was observed that, it is imperative on
the part of the police officer to apprise the person intended to be
searched of his right under Section 50 to be searched only
before a gazetted officer or a Magistrate. The Division Bench of
Delhi High Court in the decision in the case of Nabi Alam @
Abbas vs. State (Govt. of NCT of Delhi) [Bail Application
No.2641/2018 & Criminal M.(Bail) No.555 of 2021
decided on 4th June 2021) has held that, the person to be
searched is mandatorily required to be taken by the empowered
officer, for the conduct of the proposed search before a Gazetted
Officer or Magistrate, only "if he so requires", upon being
informed of the existence of his right to be searched before a
Gazetted Officer or Magistrate and not if he waives his right to
be so searched voluntarily, and chooses not to exercise the right
provided to him under Section 50 of the NDPS Act. Thus, it is to
be noted that in the FIR as well as in the statements of the
witnesses as well as Panchnama it appears that said option was
given and orally it was refused by the present applicant. There is
no non compliance of any of the mandatory provisions.
10. There is prima facie evidence against the present
applicant. A substantial amount of narcotic drug - Ganja has
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been seized. Narcotic drugs are menace to the society especially
to the young generation and therefore, when there is prima facie
evidence against the applicant, question of grant of discretionary
relief does not arise.
11. The Application, therefore, stands rejected.
[ SMT. VIBHA KANKANWADI , J. ]
asb/APR22
