Bombay High Court
Shafat Mausin Khan @ Shahrukh Khan vs The State Of Maharashtra on 18 October, 2023
Bench: Makarand Subhash Karnik
2023:BHC-AS:31195
Diksha Rane 4. BA 872-23.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.872/2023
SHAFAT MAUSIN KHAN
@ SHAHRUKH KHAN ..APPLICANT
VS.
THE STATE OF MAHARASHTRA ..RESPONDENT
------------
Adv. Rajendra Bidkar for the applicant.
Ms. Veera Shinde, APP for the State.
------------
CORAM : M. S. KARNIK, J.
DATE : OCTOBER 18, 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), 22, 29 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (hereafter 'the NDPS
Act' for short) registered on 18/11/2021 vide C.R.
No.391/2021 with Shivaji Nagar Police Station.
3. The original complainant namely Police Constable
Mr. Subhash Ramesh Thorat Bhalerao, attached to Shivaji
Nagar police station, Mumbai, lodged First Information
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Report (FIR) that on 18/11/2021, a team of officers attached
to Shivaji Nagar Police Station was on patrolling duty and
while they were at Kamalaraman Nagar, Baingan Wadi,
Govandi, Mumbai, at that time, two men were spotted with
two large paper boxes. The movements of the said persons
were found to be suspicious. On seeing police officers, they
tried to run away, hence they were accosted. The search
was carried out which resulted in the recovery of 240 bottles
of BDPL Chlorpheniramine Maleate & Codeine Phosphate
Syrup 100 ml (Phensirest Cough Syrup - Codeine). On
inquiry, they failed to produce the requisite license and
reasons as to how they are possessing the said bottles. As
they were found in possession of the aforesaid contraband,
the offence was registered.
4. Learned APP opposed the application for bail while
submitting that the procedure under Section 42 and 50 of
the NDPS Act has been complied. The applicant was found
in possession of the commercial quantity and hence rigours
of Section 37 of the NDPS Act are attracted. She further
submitted that the panchanama was prepared in presence
of two panchas.
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5. A reading of the panchanama reveals that the personal
search of the applicant as well as the boxes in possession of
the applicant was carried out. The applicant was, therefore,
given a notice under Section 50 of the NDPS Act. On the
instructions of the empowered officer i.e. the Police
Inspector Mr. Khatape, Police Constable Mr. Jadhav in
presence of the panchas took a search of the applicant.
Though nothing was found in possession on his person, on
the search of the boxes the contraband was recovered.
6. The Hon'ble Supreme Court in the case of State of
Rajasthan vs. Parmanand & anr.1 in paragraphs 10, 11
and 12 observed thus:-
"10. In Dilip & Anr. v. State of Madhya Pradesh, on the basis
of information, search of the person of the accused was
conducted. Nothing was found on their person. But on search
of the scooter they were riding, opium contained in plastic
bag was recovered. This Court held that provisions of Section
50 might not have been required to be complied with so far
as the search of the scooter is concerned, but keeping in view
the fact that the person of the accused was also searched, it
was obligatory on the part of the officers to comply with the
said provisions, which was not done. This Court confirmed the
acquittal of the accused.
11. In Union of India v. Shah Alam, heroin was first
recovered from the bags carried by the respondents therein.
1 Criminal Appeal No.78/2005 decided on 28/2/2014.
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Thereafter, their personal search was taken but nothing was
recovered from their person. It was urged that since personal
search did not lead to any recovery, there was no need to
comply with the provisions of Section 50 of the NDPS Act.
Following Dilip, it was held that since the provisions of
Section 50 of the NDPS Act were not complied with, the High
Court was right in acquitting the respondents on that ground.
12. Thus, if merely a bag carried by a person is searched
without their being any search of his person, Section 50 of
the NDPS Act will have no application. But if the bag carried
by him is searched and his person is also searched, Section
50 of the NDPS Act will have application. In this case,
respondent No.1 Parmanand's bag was searched. From the
bag, opium was recovered. His personal search was also
carried out. Personal search of respondent No.2 Surajmal was
also conducted. Therefore, in light of judgments of this Court
mentioned in the preceding paragraphs, Section 50 of the
NDPS Act will have application."
7. In the present case, Section 50 of the NDPS Act will
have application. The panchanama clearly reveals that the
personal search was carried out by the Police Constable Mr.
Jadhav who was not the empowered officer. The empowered
officer was present who instructed the Police Constable to
carry out the search of the person of the applicant. There is,
thus, no proper compliance of the provisions regarding
search of the applicant as the search was not carried out by
the empowered officer. Prima facie, there are reasonable
grounds for believing that the applicant is not guilty of the
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offence. Furthermore, there are no criminal antecedents
reported against the applicant, therefore, it is unlikely that
he will commit any offence in future.
8. The applicant is in custody for more than one year and
eleven months with no possibility of the trial concluding any
time soon. The investigation is complete. The charge-sheet
has been filed. The applicant does not appear to be a flight
risk. No criminal antecedents are reported. The applicant
can be enlarged on bail by imposing conditions. Hence, the
following order :-
ORDER
(a) The application is allowed.
(b) The applicant- Shafat Mausin Khan @ Shahrukh Khan
in connection with C.R. No.391/2021 with Shivaji Nagar
Police Station, shall be released on bail on his furnishing P.R.
Bond of Rs.1,00,000/- with one or more solvent sureties in
the like amount.
(c) The applicant shall attend the Investigating Officer of
Shivaji Nagar Police Station once in a month on every first
Monday of the month between 11.00 a.m. and 1.00 p.m. till
the trial concludes.
Diksha Rane 4. BA 872-23.doc
(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.
(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 not leave the country without prior
permission of the trial Court.
(g) The applicant shall attend the trial regularly. The
applicant shall co-operate with the trial Court and shall not
seek unnecessary adjournments.
(h) The applicant shall surrender his passport, if any, to
the investigating officer.
9. The application is disposed of.
(M. S. KARNIK, J.)
Signed by: Diksha Rane
Designation: PS To Honourable Judge
Date: 18/10/2023 20:52:29
