Bombay High Court
Sachin Laxmikant Mishra vs The State Of Maharashtra on 14 December, 2023
Author: M. S. Karnik
Bench: M. S. Karnik
2023:BHC-AS:37668
Urmila Ingale 914-ba-3966-23.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 3966 OF 2023
SACHIN LAXMIKANT MISHRA ..APPLICANT
VS.
THE STATE OF MAHARASHTRA ..RESPONDENT
Ms. Lochan Chandka a/w Mr. Raunak Naik, for the Applicant.
Ms. Veera Shinde, APP for the State.
CORAM : M. S. KARNIK, J.
DATE : DECEMBER 14, 2023
P.C. :
1. Heard learned counsel for the applicant and learned
APP for the State.
2. This is an application for bail in respect of the offence
punishable under sections 8(c) and 22(b) of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (hereafter
'the NDPS Act' for short) registered on 16/08/2023 vide C.R.
No.II-585 of 2023 with Kashimira police station.
3. There are in all 3 accused. The applicant is the
accused no.1. The applicant was arrested on 16/08/2023.
4. This is a case of a chance recovery. The movements of
the applicant were found suspicious. The applicant was
searched on 16/08/2023 by the raiding party. The applicant
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was found in possession of the contraband Mephedrone
(MD) weighing 24.7 grams which is an intermediate quantity
and not a commercial quantity. It is on the information of
the applicant that the contraband was purchased from the
accused no.2, that the accused no.2 came to be arrested
who was found in possession of the contraband MD
weighing 31 grams.
5. Learned APP submitted that though the applicant was
found in possession of non-commercial quantity of
contraband, as section 29 of NDPS Act is applied to the
present case, the quantity found with the applicant as well
as accused no.2 will have to be taken together which is
more than the commercial quantity. Hence, according to
her the rigours of section 37 are applicable.
6. In my opinion, the materials on record indicates that
the applicant was found in possession of an intermediate
quantity of contraband. It is on the information of the
applicant that he had purchased the contraband from the
accused no.2, that the accused no.2 came to be arrested
and found in possession of 31 grams of MD. On the basis of
the materials on record, prima facie, I am of the opinion that
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quantity which is found in possession of the applicant will
have to be regarded as such being a non-commercial
quantity and hence rigours of section 37 will not be
applicable.
7. Assuming section 29 of NDPS Act is attracted even
then from the panchanama dated 15/08/2023, it is noticed
that there is breach of section 50(1) of the NDPS Act. The
panchanama dated 15/08/2023 mentions that officer of the
raiding party while informing the accused his right to be
searched before the gazetted officer or the Magistrate,
mentioned that the officer himself is a gazetted officer and
he has right to search the applicant. In terms of section 50
of the NDPS Act, the applicant has right to be searched
before the gazetted officer or Magistrate, if the applicant so
desires. This court in the case of Afaque Asif Sayyed Vs.
State of Maharashtra in Bail Application No. 1145 of 2015 by
order dated 22/12/2015 in paragraphs 3 and 4 has observed
thus :
"Learned Counsel for the applicant submitted that the
moment the police inspector being member of raiding
party informed the applicant that he himself is a
gazetted officer, and whether the applicant would like
to have himself searched before another gazetted
officer or a Magistrate, the provisions of section 50(1)
of the NDPS Act are breached. In support of his
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contentions, he relied upon the decisions of the
Supreme Court in the case of State of Rajasthan Vs.
Parmanand & Anr. reported in (2014) 5 SCC 345 and
in the case of Special Leave to Appeal (Cri) No.4590
of 2015 (Gurnam Singh @ Gagan Vs. State of Punjab).
He further submitted that the Apex Court in view of
the similar facts and circumstances of the present
case was pleased to grant bail to the applicant
therein. Learned Counsel for the applicant thereafter
placed his reliance upon a judgment of the division
bench of this Court reported in 2001(5) BCR (Cri) 9 in
the case of Dharmaveer Lekhram Sharma Vs. State of
Maharashtra.
4. The Division Bench of this Court in para 8 of the
said judgment has held that inclusion of police
officers who are also gazetted officers in the raiding
party is obvious. However, mentioning of the fact
while appraising the accused regarding their right as
contemplated under section 50 of the NDPS Act
suggests, by necessary implication that accused were
discouraged in obtaining search by independent
authority. That the possibility of misleading the
accused cannot also be ruled out in this regard. It has
been further held that in view of the same the
appraisal as contemplated under section 50(1) of the
Act gets vitiated. In the present case, a plain reading
of the FIR itself makes it clear that the senior P.I.
Mr.Kshirsagar who was also a member of raiding
party before appraising the applicant of his legitimate
right under section 50(1) of the N.D.P.S. Act has
introduced himself to the applicant as also a Gazetted
officer. This in view of the ratio laid down by the
aforesaid judgements, clearly vitiates the provisions
of section 50(1) of the NDPS Act. In view of the
above, the applicant has made out a case to be
released on bail."
8. In my opinion, the decision in Afaque Asif Sayyed will
apply to the facts of the present case as well. It is made
clear that these observations are prima facie in nature only
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for the purpose of deciding this application and shall not
influence the trial.
9. I am satisfied that the twin conditions of section 37 of
the NDPS Act are satisfied. No criminal antecedents are
reported against the applicant. Hence, it is unlikely that the
applicant will commit any offence while on bail. Hence, the
following order :-
ORDER
(a) The application is allowed.
(b) The applicant- Sachin Laxmikant Mishra in connection
with C.R. No. II-585 of 2023 registered with Kashimira police
station shall be released on bail on his furnishing P.R. Bond
of Rs.1,00,000/- with one or more local sureties in the like
amount.
(c) The applicant shall attend the investigating officer of
Kashimira police station once in a month on first Monday of
every month between 10.00 a.m. and 12.00 noon till the
conclusion of the trial.
(d) The applicant shall not directly or indirectly make any
inducement, threat or promise to any person acquainted
with the facts of the case so as to dissuade him from
disclosing the facts to Court or any Police Officer. The
applicant shall not tamper with evidence.
Urmila Ingale 914-ba-3966-23.doc
(e) On being released on bail, the applicant shall furnish
his contact number and residential address to the
investigating officer and shall keep him updated, in case
there is any change.
(f) The applicant shall attend the trial regularly. The
applicant shall co-operate with the trial Court and shall not
seek unnecessary adjournments.
(g) The applicant shall surrender his passport to the
investigating officer. If the applicant does not have passport,
he shall file the affidavit to that effect.
10. The application is disposed of.
(M. S. KARNIK, J.)
Signed by: Urmila P. Ingale
Designation: PS To Honourable Judge
Date: 14/12/2023 19:35:24
