Popat Govardhan Nagode vs The State Of Maharashtra
2023 Latest Caselaw 61 Bom

                                     1                           932-BA-1986-22.odt




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD


                       BAIL APPLICATION NO.1986 OF 2022

                     POPAT GOVARDHAN NAGODE
                                VERSUS
                     THE STATE OF MAHARASHTRA
                                    ...
     Advocates for Applicant : Mr. Abhay D. Ostwal with Mr. Kiran D.
          Jadhav, Mr. Mohit L. Deoda and Mr. Sourabh Munot
                   APP for Respondent : Mr. K. S. Patil
                                    ...

                                         CORAM :        S. G. MEHARE, J.

                                         DATE       : 03-01-2023

PER COURT :-

1. Heard the learned counsel for the applicant and the learned

A.P.P. for the respondent/State.

2. The facts of the case were that when the police were on

regular patrolling, they reached the toll. At that time, some

policemen were present there. At about 3.15 a.m., a car came

from the direction of Aurangabad at high speed. So, he applied the

barricades and stopped the said car. In the said car, an electric

weighing machine was found. The police asked for the names of

the persons sitting in the car. They told their names. One of them

was the present applicant. Police got suspicious and asked to open

the dickey. They were avoiding opening, but lastly, the dickey was

opened. Gunny bags lying in the dickey were opened. Greenish-

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dried leaves were found therein. When police took the smell, they

confirmed that it was a Ganja. Then, they gave intimation to the

Police Inspector of the concerned police station. He asked them to

stay there. Then, he reached the spot of the incident along with

Naib Tahsildar, two panchas, a photographer, a weighing machine

and material for sealing and labelling. At about 5.25 hours, they

weighed that contraband. It weighed 40 Kg. and 350 grams.

Hence, they took the said persons in their custody.

3. The prosecution also has a case that a notice under Section

50 of the NDPS Act was given. Further, the prosecution has a case

that it was commercial quantity. Hence, the offence under Sections

20 and 29 of the NDPS Act was registered.

4. The vehement argument of the learned counsel for the

applicant was that there was absolutely no compliance with

Sections 42 and 50 of the NDPS Act. He would refer to the contents

of the alleged notice under Section 50 of the NDPS Act. He has

vehemently argued that it was not in strict compliance with the

law. The joint notice to all accused is illegal and impermissible in

the law.

5. To bolster his argument, the learned counsel for the

applicant relied on the case of State of Rajasthan Versus

Parmanand and another, (2014) 5 SCC 345. In this case, the

Hon'ble Supreme Court has observed that there should be

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individual communication to each accused and independent

consent by each accused. Joint communication of the right of the

accused not found sufficient in the said case.

6. Secondly, learned counsel for the applicant has argued that

in view of the ratio laid down in the case of Karnail Singh Versus

State of Haryana, (2009) 8 SCC 539, compliance with Section

42 of the NDPS Act is mandatory. Though the intimation was

received during the course of regular patrolling, the compliance

required under Sections 42(1) and 42(2) of the NDPS Act was not

done with a satisfactory explanation about the delay. In the said

case, Hon'ble Supreme Court, referring to its earlier judgments in

the cases of Abdul Rashid (2000) 2 SCC 513 and Sajan

Abraham [(2001) 6 SCC 692] has observed, in clause (d) of

paragraph 35 that "while total non-compliance with requirements

of sub-Sections (1) and (2) of Section 42 is impermissible, delayed

compliance with satisfactory explanation about the delay will be

acceptable compliance with Section 42. To illustrate, if any delay

may result in the accused escaping or the goods or evidence being

destroyed or removed, not recording in writing the information

received, before initiating action, or non-sending of a copy of such

information to the official superior forthwith, may not be treated as

violation of Section 42. But if the information was received when

the police officer was in police station with sufficient time to take

action, and if the police officer fails to record in writing the

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information received, or fails to send a copy thereof, to the official

superior, then it will be a suspicious circumstance being a clear

violation of Section 42 of the Act. Similarly, where the police officer

does not record the information at all, and does not inform the

official superior at all, then also it will be a clear violation of

Section 42 of the Act. Whether there is adequate or substantial

compliance with Section 42 or not is a question of fact to be

decided in each case. The above position got strengthened with

the amendment to Section 42 by Act 9 of 2001".

7. Further, the learned counsel for the applicant has

vehemently argued that contraband was weighed with flowering

buds and pieces of stalks, stems, leaves and seeds without

quantifying the weight of flower tops. Therefore, that raises doubt

about the commercial quantity to attract Section 20 (c) of the

NDPS Act. To bolster his arguments, he relied upon the order

delivered at the Principal Seat at Bombay in Bail Application

No.2299 of 2019, dated 29.07.2021 and Criminal Bail Application

No.1601 of 2018 and companion matter, dated 21.11.2018. He

also referred to the order passed by this Court in Bail Application

No.1451 of 2022 (Vaibhav Ranba Ujagare Versus State of

Maharashtra and another), dated 19.10.2022.

8. Per contra, the learned A.P.P. has vehemently opposed the

application. He would submit that an appropriate notice was given

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to the accused, and they were apprised of their right as

contemplated under Section 50 of the NDPS Act. He would argue

that the accused were well informed about their right and they

understood their rights from the contents of the notice. Therefore,

it cannot be said that Section 50 of the NDPS Act has not been

complied with. He would also argue that the contrabands were

found in the gunny bag kept in the dickey. Therefore, the right of

the accused to get examined before a Gazetted Officer or a

Magistrate has not been affected. In other words, he has argued

that if a personal search is not taken, then the requirement under

Section 50 of the NDPS Act is not mandatory. He would also argue

that there is evidence the contraband was found carried in a

dickey, and the police asked to inspect the dickey during their

patrolling. Therefore, Section 42 of the NDPS Act would also not

attract. The quantity was apparently commercial. Hence, Section

37 of the NDPS Act would come into play. There is no material on

record to satisfy the Court that the applicant may not commit the

same offence in the near future.

9. Perusal of the record reveals that the so-called alleged notice

under Section 50 of the NDPS Act was served jointly upon the

accused. In the said notice, it has been mentioned that the police

wanted to search the accused personally as well as the dickey. The

suspicion raised by the learned counsel for the applicant about the

absence of the Tahsildar also found substance as the seizure

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panchnama does not bear his signature. In view of the contents of

the notice allegedly served under Section 50 of the NDPS Act, the

ratio laid down in the case of State of Rajasthan Versus

Parmanand (supra) is squarely applicable to the present case.

10. As far as the quantity of the contraband seized is concerned,

the Chemical Analyzer's report reveals that the contraband was

sent to his office containing flowering tops mixed with pieces of

stalks, stems, leaves and seeds without quantifying the weight of

floor tops. There is no reason to take a different view as taken by

this Court in Bail Application No.2299 of 2019 dated 29.07.2021

and Criminal Bail Application No.1601 of 2018 and companion

matter (supra).

11. The absence of separating the flowering buds from pieces of

stalks, stems, leaves and seeds, prima facie, raises a doubt about

the commercial quantity to attract the provision of Section 20(c) of

NDPS Act. This Court has also taken the same view in Bail

Application No. 1451 of 2022.

12. The prosecution has no explanation or a record showing that

after the seizure of the contraband, they have intimated the

official superior, as has been observed by the Hon'ble Supreme

Court in Karnail Singh's case (supra). Prima facie, there are

various legal defects. That raises doubt about the commercial

quantity of the Ganja. Since mandatory compliance with the

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provisions of the law is missing, the applicant deserves bail.

Hence, the following order:-

i)      The application is allowed.

ii)     Applicant Popat s/o. Govardhan Nagode be released on bail,

on furnishing PB and SB of Rs.1,00,000/- with two solvent

sureties of the amount of Rs.50,000/- each, in Crime No.39 of

2022, registered with Paithan Police Station, Taluka Paithan,

District Aurangabad, for the offence punishable under

Sections 20 and 29 of the Narcotic Drugs and Psychotropic

Substances Act, 1985, (now Special Case No.201 of 2022) on

the conditions to attend the trial on each effective date of

hearing during the course of the trial and shall not involve in

the similar offence.

( S. G. MEHARE ) JUDGE

rrd