Bombay High Court
Vaibhav Ranba Ujagare vs The State Of Maharashtra And ... on 19 October, 2022
Bench: S. G. Mehare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
BAIL APPLICATION NO.1451 OF 2022
Vaibhav Ranba Ujagare ...Applicant
Versus
The State Of Maharashtra and another ...Respondent
...
Advocate for Applicant : Mr. Swapnil B. Joshi and Mr. Chetan B.
Choudhari h/f J.P. Legal Legal Associates.
APP for Respondent/State : Mr. V.M. Kagne
...
CORAM : S.G. MEHARE, J.
RESERVED ON : 11th OCTOBER, 2022
PRONOUNCED ON : 19th OCTOBER, 2022
ORDER:-
1. The applicant is seeking bail under Section 439 of the
Criminal Procedure Code in Crime No.346 of 2021 registered with
Police Station MIDC, District Latur, for the offences punishable under
Section 8(c), 20 (b) (ii) (c) and 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 ('NDPS Act' for short).
2. The prosecution case, in brief, is that on 01.06.2021 at
about 20.05 hrs, the complainant/police inspector received the secret
information that a car bearing No.MH-24-AF-2095 of Maruti Suzuki is
stationary in front of Zee Little Mount English School carrying the
Ganja. He immediately gave the information to the Additional
Superintendent of Police and SDPO, Latur. One Police Sub-Inspector
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was posted at the said place to watch the activities of the persons in
the said car. Then he did the usual formalities of collecting the
panchas, forming the raiding party, etc. Gazetted Officer Naib
Tahsildar was also with the police. The police trapped the said
vehicle. The persons in the raiding party took the search of each other,
and nothing incriminating was found with them. At 22.29 hours, the
information was given to the Superintendent of Police and other
officers by wireless. Then, the raiding party proceeded to execute the
raid. The applicant was in the driving seat of the said vehicle. The
search was taken after giving the information about their right to
have a search before the Gazetted Officer. Then, the vehicle was
searched. The police found 43 plastic pack bags containing green
colour seed mix Ganja. The samples from the said bags were
collected. The applicant was apprehended on the spot on 01.06.2021.
Since then, he has been languishing behind bars.
3. Learned counsel for the applicant would submit that the
person who received the secret information did not comply with
Sections 42 and 50 of the NDPS Act. A charge sheet has been filed.
The applicant had no concern with the vehicle. However, he made a
phone call to the owner of the vehicle. He reached the spot of the
incident at 04.30 pm on the very same day. There is no evidence of
posting the police officer for surveillance. Referring to the general
diary details on page 26, he vehemently argued that the secret
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information was not sent to the superior, but he was informed by
telephonic message. The secret information was received at 20.05 hrs,
and the raid was taken at 22.40 hrs. So it was quite possible for the
officer leading the raid to send a copy of the written information as all
the superior police officers have their offices in Latur city. The
applicant has no nexus with drug peddlers. The vehicle was found in
a dense locality. The description in seizure panchnama differs from
the description of the goods mentioned in the investigation note dated
03.06.2021. The applicant is a permanent resident of Latur. The co-
accused had been released on bail. The contrabands were packed;
hence, the applicant did not know its contents. The applicant may be
released on bail.
4. Learned APP has opposed the application. He would
argue that he was in conscious possession; hence, he cannot deny that
he was unaware of the contents of the packet. The statement of the
owner of the vehicle is material. He states that the applicant took his
vehicle under the pretext of attending the funeral but brought the
contraband from Hyderabad. The compliance of Section 42 has been
done. The secret information was reduced to writing in the station
diary, and the intimation was given to the superior. The Gazetted
Officer was present, and the applicant's right under Section 50 of the
NDPS Act was protected. The offence is serious; hence, he is not
entitled to bail.
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5. The applicant has relied on the cases of Sholadoye
Samuel Joy Vs. The State of Maharashtra, 2022 ALL MR (Cri) 1420 .
In the case of Sholadoye, the ratio laid down in the case of Karnail
Singh Vs. the State of Haryana, (2009) 8 SCC 539 has been
considered. The view in the case of Karnail Singh is consistent. The
Hon'ble Apex Court, in the case of Karnail Singh, has laid down the
law that compliance with Section 42 of the NDPS Act is mandatory.
The law is also settled that compliance with Section 50 of the NDPS
Act is mandatory. Under Section 50 of the NDPS Act, it is imperative
on the part of the police officer to appraise the person intended to be
searched of his right to be searched before the Gazetted Officer or
Magistrate.
6. The FIR reveals that after the trap, the police appraise the
persons sitting in the car, the object of the search. The persons in the
raiding party had given their personal search, and immediately the
search was started. Section 50 was to appraise the person intended to
be searched and his right to be searched before the Gazetted Officer
or Magistrate. The FIR is silent that the applicant was appraised of his
right to be searched before the Gazetted Officer though he was a
member of the raiding party. Therefore, it cannot be said that
Section 50 of the NDPS Act has been complied with. The charge sheet
further reveals that the secret information was reduced to writing in
the general station diary, and the information was given to the
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superior on the telephone. In the FIR, it was mentioned that the
police officer had received secret information that the car stationary
in front of the English School had contraband. He has transmitted the
information to his superior. The FIR is silent that soon after, the secret
information received was reduced to writing, and that written
information has been supplied to his superior. The purport of Section
42 (2) of the NDPS Act is to take down the information in writing, or
the officer concerned has to record the grounds for his belief under
proviso to subsection 1, and within 72 hours, he has to send a copy
thereof to his official superior. The mandate of law appears to have
not been complied with in the case at hand. Therefore, in view of the
ratio laid down by the Hon'ble Apex Court in the catena of judgments,
the applicant is entitled to bail. Hence, the following order :
ORDER
(i) Bail application is allowed.
(ii) The applicant, Vaibhav Ranba Ujagare, be released on bail on
executing P.B. and S.B. of Rs.25,000/- (Rupees Twenty Five
Thousand) with one surety in the like amount in Crime No.346 of
2021 registered with Police Station MIDC, District Latur for the
offences punishable under Section 8(c), 20(b)(ii)(c) and 29 of the
Narcotic Drugs and Psychotropic Substances Act, 1985, on the
condition that he shall not tamper with the prosecution witnesses and
shall not involve in the similar crime.
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(iii) The applicant shall not protract the trial.
(iv) Needless to state, the observations recorded in this application
are prima facie and confined to the bail applications only.
(v) The trial Court shall not be influenced by the findings recorded
in this order during the trial.
(S.G. MEHARE, J.)
Mujaheed//
