Chand Riyaz Shaikh S/O Riyaz ... vs The Union Of India And Anr
2023 Latest Caselaw 6942 Bom

2023:BHC-AS:19459

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                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            CRIMINAL APPELLATE JURISDICTION

                                BAIL APPLICATION NO. 3269 OF 2022


               Chand Riyaz Shaikh s/o. Riyaz Shaikh                        ..Applicant

                              v/s.
               The Union of India & Anr.                                   ..Respondents

               Senior Advocate Mr. A.P.Mundargi i/b. Adv. Agastya Desai with Mr.
               Ayaz Khan & Mr. Mithilesh Mishra for the Applicant.
               Mr. Madhukar Dalvi for the Respondent No.1.
               Mrs. A.A.Takalkar, APP for the State.

                                               CORAM : ANUJA PRABHUDESSAI ,J.

DATED : 13th JULY, 2023.

P.C.

1. This is an application under Section 439 Cr.P.C. filed by the

aforesaid Applicant who is facing trial in NDPS Special Case No. 796 of

2021 pending on the file of learned Special Judge NDPS (C.R.42), Gr.

Bombay, for offences punishable under Section 8(C ), 22( C), 27A, 28,

29, and 35 of the Narcotics and Psychotropic Substances Act, 1985

(NDPS Act).

2. The case of the prosecution is that on 2.1.2021 at about 16.15

hours specific information was received that the Applicant would be

delivering the contraband which was concealed in the dicky of the

scooter, to an unknown person near Novelty Medicine Shop, near

Bandra Railway Station, Guru Nanak Marg, Bandra. The information

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was reduced into writing and forwarded to the Superintendent and the

Zonal Director of the Narcotic Control Bureau (NCB) and the NCB team

proceeded to the disclosed spot. It is alleged that at about 11.00 p.m. the

scooter driven by the Applicant was intercepted and four zip-lock

pouches, which contained some white colour substance, concealed in

the dicky of the scooter, were recovered. The said pouches were

separately weighed, and later emptied in one transparent ziplock pouch

and a homogeneous mixture was prepared which weighed 400 grams.

The same was seized under the panchanama drawn at the spot. The

representative sample was drawn and forwarded to CSFL for testing. It

has tested positive for mephadrone.

3. In the course of the investigation the co-accused came to be

arrested. The Applicant as well as the co-accused were initially

remanded to police custody, and subsequently to Judicial Custody. The

investigation proceeded and after conclusion of the investigation,

Chargesheet came to be filed against the Applicant for the offences as

stated above.

4. The Applicant filed bail application before learned Special Judge,

which came to be dismissed by order dated 16th December, 2021, mainly

on the ground that the Applicant was in possession of commercial

quantity of the contraband MD. Relying upon the decision of the Apex

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Court in Rajendra & Anr. vs. State of MP (2004) 1 SCC 432, the

learned Special Judge observed that Section 43 was applicable to the

facts of the case and hence there is no contravention of Section 42 of the

NDPS Act. Learned Special Judge observed that in view of rigors of

Section 37 of the NDPS Act, the Applicant is not entitled for bail. Hence

the present application.

5. Shri Mundargi, learned Sr. Counsel submits that the investigating

officer had received information at about 4.15 p.m. that the Applicant,

who was traveling by scooter, was to deliver contraband to an unknown

person near Novelty Medicine Store at about 11.00 p.m. He submits

that the contraband was concealed in a private vehicle, hence provisions

of Section 43 are not applicable. It was urged that since the search was

to be conducted between sunset and sunrise, the investigating officer

was required to comply with the provisions of Section 42 of the NDPS

Act. In support of his contention, he has relied upon the decision in

State of Rajasthan vs. Jagraj Singh @ Hansa (2016) 11SCC 687 and

Boota Singh & Ors. vs. State of Haryana 2021 SCC Online SC 324.

6. Learned counsel for the Applicant further submits that though it

is alleged that all four packets recovered from the Applicant were

emptied in one transparent zip lock pouch and were sealed in presence of

panchas, the media report, the news articles as well as the photos

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circulated through whatsapp messages show the Applicant in the office

of NCB with four packets of white substance. Furthermore, the

panchanama, which was allegedly drawn at the place of the incident as

well as the notice under Section 67 of the NDPS Act, which was served

on the Applicant on the spot makes reference to the crime number.

These facts prima facie falsify the case of the prosecution that the

contraband which was in four packets, was emptied in one packet and

sealed at the place of the incident and further that the panchanama and

the notice were prepared/issued on the spot. Reliance is placed on the

decision in the case of Kamaljit Singh Alias Pappu v/s. State of Punjab

(2020) 14 SCC 9 and State of Orissa v/s. Sitansu Sekhar Kanungo

2002 SCC Online SC 1296.

7. Learned counsel for the Applicant submits that the NCB team had

not drawn the sample from each of the zip lock bags but had mixed the

substance from all the four bags without field test. He contends that the

sample was not drawn as per the standing order and consequently, the

sample sent to CFSL cannot be considered as the representative sample.

8. Per contra, Mr. Dalvi, learned Special PP submits that section 43

deals with power of seizure and arrest in public place. In the instant

case, the information received by the NCB was in respect of concealed

contraband in a vehicle in transit, which was intercepted in a public

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place. He therefore contends that section 42 has no application. He has

relied upon the decision of the Hon'ble Supreme Court in the case of

Rajendra and others v/s. State of Madhya Pradesh (2004) 1 SCC 432.

9. Learned APP urges that the Applicant was found in possession of

commercial quantity of contraband. Hence, the exercise of power to

grant bail is subject to the limitation placed by section 37 of the NDPS

Act. He submits that the Applicant would not be entitled for bail unless

the Court is satisfied that he is not guilty of such offence and that he is

not likely to commit any such offence while on bail. Reliance is placed

on the decision of the Apex Court in State of Kerala, etc. v/s. Rajesh,

etc.

10. Learned APP contends that there is no illegality or irregularity in

drawing the sample. Even otherwise, compliance of the procedure for

drawing the sample or the procedure laid down under section 42 of the

NDPS Act, is a question of fact which can be raised only in the course of

the trial. Reliance is placed on the decision of the Apex Court in Union

of India through Narcotics Control Bureau, Lucknow v/s. Md. Nawaz

Khan in Criminal Appeal No.1043 of 2021.

11. I have perused the records and considered the submissions

advanced by the learned counsel for the respective parties.

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12. The Applicant seeks bail inter alia on the ground of breach of

Section 42 of the NDPS Act. This provision deals with the power of

entry, search, seizure and arrest without warrant or authorization,

whereas, Section 43 deals with power of seizure and arrest in public

place. The scope of Section 42 and 43 has been considered by the Apex

Court in Rajendra & Anr. (supra). In this case, information was

received that two persons carrying contraband articles had got down

from Madhya Pradesh Express and were waiting at the platform. The

said information was recorded and subsequently the person carrying

contraband was apprehended, and later convicted. The conviction was

challenged on the ground of violation of Section 42(2) of the Act. It

was held that :-

"9. Section 42 enables certain officers duly empowered in this

behalf by the Central or State Government, as the case may be,

to enter into and search any building, conveyance or enclosed

place mentioned therein without any warrant or

authorizaation . Section 42 deals with "building, conveyance

or enclosed place, whereas Section 43 deals with power of

seizure and arrest in public place. Under sub-section (1) of

Section 42 the method to be adopted and the procedure to be

followed have been laid down. If the concerned officer has

reason to believe from personal knowledge, or information

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given by any person and has taken down in writing, that any

narcotic drugs or substance in respect of which an offence

punishable under Chapter IV of the Act has been committed or

any other articles which may furnish evidence of the

commission of such offence is kept or concealed in any

"building or conveyance or enclosed place" he may between

sunrise and sunset, do the acts enumerated in Clauses (a) and

(b), (c) and (d) of Sub-section (1).

10. The proviso came into operation if such officer has

reason to believe that search warrant or authorization cannot

be obtained without affording opportunity for the concealment

of evidence or facility for the escaped offender, he may enter

and search such building, conveyance or enclosed place any

time between sunrise and sunset after recording grounds of his

belief. Section 42 comprises of two components. One relates

to the basis of information i.e. (i) from personal knowledge (ii)

information given by person and taken down in writing. The

second is that the information must rrelate to commission of

offence punishable under Chapter IV and/or keeping or

concealment of document or article in any building,

conveyance or enclosed place which may furnish evidence of

commission of such offence. Unless both the components exist

Section 42 has no application. Sub- Section (2) mandates as

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was noted in Baldev Singh's case (supra) that where an

officer takes down any information in writing under Sub-

section(1) or records grounds for his belief under the proviso

thereto, he shall forthwith send a copy thereof to his

immediate official superior. Therefore, Sub-section(2) only

comes into operation where the officer concerned does not

enumerate acts in case any offence under Chapter IV has been

committed or documents etc., are concealed in any building,

conveyance or enclosed place. Therefore, the commission of

the act or concealment of document etc. must be in any

building, conveyance or enclosed place."

13. In Jagraj Singh, and Boota Singh, supra, the Hon'ble Supreme

Court has observed that Section 42(1) indicates that any authorized

officer can carry out search between sunrise and sunset without warrant

or authorization. The scheme indicates that in the event the search has

to be made between sunrise and sunset, the warrant would be necessary

unless the officer has reasons to believe that a search warrant or

authorization cannot be obtained without affording the opportunity for

escape of the offender, which grounds of his belief have to be recorded.

The Hon'ble Supreme Court has further observed that the Explanation

to Section 43 which defines the expression "public place" includes any

public conveyance. The word public conveyance as used in the act has

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to be understood as a conveyance which can be used by the public in

general. It is held that the vehicles which can used for public are public

motor vehicles for which necessary permits have to be obtained.

Referring to the Constitution Bench judgment in Karnail Singh vs. State

of Haryana, it was reiterated that non compliance with requirement of

Section 42 is impermissible, whereas delayed compliance with

satisfactory explanation will be acceptable compliance with Section 42.

14. Issue of non compliance of Section 42(2) of the NDPS Act was

also raised in Md. Nawaz Khan (supra). Referring to the decision in

Karnail Singh, the Hon'ble Supreme Court reiterated that though the

writing down of information on the receipt of it should normally precede

the search and seizure by the officer, in exceptional circumstances that

warrant immediate and expedient action, the information shall be written

down later along with the reason for the delay. It is further observed

that whether there was compliance of the procedure laid down under

Section 42 of the Act is a question of fact and should be raised in the

course of the trial.

15. In the instant case, the Applicant has alleged that despite specific

information, search was conducted and contraband was allegedly seized

from a private vehicle between sunset and sunrise without warrant or

authorization. It is not in dispute that the specific information received

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by the Intelligence Officer was reduced in writing. A perusal of the said

information note reveals that on 2.1.2021, at about 4.15 p.m., the

Intelligence Officer, NCB, Mumbai Zone Unit, had received

information that an Indian National - Chand Riyaz Shaikh i.e. the

Applicant herein, the rider of scooty bearing R.C. No. MH 02 FK 7694,

was going to deliver to an unknown person a large quantity of

mephadrone, concealed in the dicky of the said scooter. The place of

delivery was stated to be near Novelty Medicine Shop (Johnson

Complex), Near Bandra Railway Station, Guru Nanak Marg, Bandra and

the time of delivery was stated to be at about 23.00 hours. The

information was forwarded to the Superintendent and the Zonal Director

of the NCB, Mumbai, and the NCB team proceeded to the alleged

place of delivery. The two wheeler as described in the information note,

which was driven by the Applicant herein, was intercepted and four

transparent zip-lock pouches containing white coloured crystalline

substance suspected to be mephadrone were recovered from the dicky of

the scooter.

16. The records thus reveal that the alleged recovery was not a chance

recovery in the normal course of investigation, but it was on the basis of

specific information that the Applicant was to deliver the contraband

concealed in the dicky of scooty no. MH 02 FK 7694, to an unknown

person between sunset and sunrise at the specified address. The scooty

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wherein the contraband was allegedly concealed was a private vehicle.

Consequently, the same would not fall within the purview of "public

place" as explained in Section 43 of the NDPS Act. Since Section 43 is

not attracted, search was to be conducted after complying with the

provisions of Section 42 of the NDPS Act.

17. In this regard, it is pertinent to note that the Intelligence Officer

had received the information at 16.15 hours. He was well aware that the

contraband was to be delivered at 23.00 hours and that search was to be

conducted after sunset. It was therefore obligatory upon the officer to

obtain warrant or authorization, unless he had reason to believe that

warrant or authorization could not be obtained without affording

opportunity to the offender to escape or to conceal the evidence. It is not

in dispute that search, seizure as well as arrest was effected without

warrant or authorization. The concerned officer has not recorded

reasons for his belief in terms of proviso to Section 42(1) of the NDPS

Act. The search and seizure which is in contravention of mandatory

provision of Section 42 of the NDPS Act, prima facie makes the

recovery doubtful.

18. It is the case of the prosecution that the contraband was seized

under panchanama drawn at the place of the incident and concluded at

about 23.50 hours. The panchanama states that notice under Section 67

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was served on the Applicant at the spot of the incident. The notice

which preceded registration of the FIR, mentions the crime number.

Indication of crime number in the notice which was allegedly issued at

the spot, before registration of the crime, prima facie raises a serious

doubt about the prosecution case.

19. The record also prima facie reveal that the investigating agency

had not drawn sample independently from each packet but had mixed

together the entire contraband in one packet without field test and

thereafter taken the sample and forwarded the sample to CSFL for

analysis. In my prima facie view, the sample was not drawn in

consonance with the standing orders, and hence prima facie the sample

sent to CSFL was not the representative sample.

20. Considering the above facts and circumstances, the applicant

would be entitled for bail despite rigors of Section 37 of the NDPS Act.

Hence the following order:-

(i) The Application is allowed;

(ii) The Applicant who is facing trial in NDPS Special Case No.

796 of 2021, is ordered to be released on cash bail of Rs.1,00,000/-

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(Rupees One Lakh Only) for a period of four weeks;

(iii) The Applicant shall within the said period of four weeks,

furnish bail bond in the sum of Rs.1,00,000/- (Rupees One Lakh

Only) with one or two solvent sureties in the like amount;

(iv) The Applicant shall attend the hearing before the Special

Court on every date, unless exempted.

(v) The Applicant shall surrender his passport, if any, before the

Special Court and shall not leave the country without prior

permission of the Court.

(vi) The Applicant shall keep the Investigating Officer informed of

his permanent as well as temporary address, if any, and his contact

details, and/or change of residence or mobile details from time to

time.

                                        (ANUJA PRABHUDESSAI, J.)




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