Abdul Kadir Ghogari vs Union Of India And Anr
2023 Latest Caselaw 9701 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 CRIMINAL APPELLATE JURISDICTION

                BAIL APPLICATION NO. 1646 OF 2022

Abdul Kadir Ghogari                                   ...Applicant
                Versus
1. Union of India
2. State of Maharashtra                            ...Respondents
                                  ...
Mr. Aditya Sharma with Ms Priya Maurya for the Applicant.
Mr. Shriram Shirsat with Mr. Anna Oommen with Mr. Shekhar Mane for
Respondent -NCB
Mr. S.H. Yadav, APP for the Respondent-State.


                          CORAM: SMT. ANUJA PRABHUDESSAI, J.

ORDER PRONOUNCED ON : 15th SEPTEMBER, 2023

ORAL ORDER :-

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

the aforesaid Applicant, who is facing trial in NDPS Special Case

No.1189 OF 2021 pending on the file of Special Court (C.R.42) (NDPS)

at Greater Bombay, for offences under Sections 8(c) r/w 22 (c), 27,

27A and 29 of the Narcotic Drugs and Psychotropic Substances Act,

1985 (the NDPS Act).

2. It is the case of the prosecution that pursuant to specific

information received by the Intelligence Officer that a person by name -

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Abdul Kadir was to come near Mao Chinese Bhangar Shah Baba Darga,

Mahim for sale of substantial quantity of Mephedrone (MD) to a

customer, the NCB team and the panchas had proceeded to the spot.

The Applicant herein who had come to the said place was accosted and

Mephedrone of commercial quantity was recovered from his possession

after complying with all the relevant provisions of the NDPS Act.

Contraband of commercial quantity was also recovered from the co-

accused, from whom the Applicant had purchased the contraband. The

Applicant and the co-accused were placed under arrest. The sample

which was drawn in presence of the Magistrate, was sent to CFSL and

the same has tested positive for Mephedrone. Hence, charge sheet

came to be filed against the Applicant and the co-accused for the

offences as stated above.

3. The bail application filed by the Applicant has been

dismissed by the Special Court mainly on the ground that he was found

in conscious possession of commercial quantity of Mephedrone and

hence contravention of Section 50 would not per se give a right to seek

bail. The learned Judge observed that prima facie there are reasonable

grounds to believe that the Applicant is involved in committing the

offences as alleged and hence he is not entitled for bail.

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4. Mr. Aditya Sharma, learned counsel for the Applicant states

that the substance, which was allegedly recovered from the Applicant

weighed 55 gms, including the weight of the plastic bag, which

weighed 3 gms. Whereas the substance with plastic bag produced

before the Metropolitan Magistrate weighed 57.7 gms. He further

submits that the substance recovered from the Applicant was in the

form of white crystal whereas the substance forwarded to the CFSL was

of brown colour. He submits that the sample was packed and sealed

and discolouration was not possible due to exposure to air. He

therefore contends that there is material discrepancy in the weight and

colour of the substance seized.

5. He submits that the Applicant was not searched before an

independent Gazetted Officer or before the Magistrate but an option

was given to the Applicant to be searched before a gazetted officer,

who was the member of NCB team. He therefore urges breach of the

safeguards provided under Section 50 of the NDPS Act. He has relied

upon the decision of the Apex Court in SK. Raju Alias Abdul Haque

alias Jagga Vs. State of West Bengal (2018) 9 SCC 708, State of

Rajasthan vs. Parmanand and Anr. (2014) 5 SCC 345, Intelligence

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Officer, NCB Jammu Vs. Vijay Kumar CRAA No.37 of 2017 and Ishdan

Seikh Vs. Union of India, CRA 90 of 2022.

6. Per contra, Mr. Shirsat, learned counsel for NCB states that

the contraband was seized on 27/03/2021, the sample was drawn on

23/07/2021 and the same was forwarded to CFSL on 22/09/2021. He

submits that the CFSL report indicates that the seals on the parcel were

intact and tallied with specimen seal. He submits that the discrepancy

in colour could be due to exposure to air or due to chemical reaction.

The alleged discrepancy in weight and colour can be explained only in

the course of trial.

7. Relying upon the decisions in State of Uttar Pradesh vs.

Shebu Mohd. Rashid, Special Leave Petition (CRL) No.6727 of 2020 ,

State of Punjab Vs. Baldev Singh, (1999) 6 SCC 172 , Nabi Alam @

Abbas Vs. State (Govt. of NCT of Delhi Bail Application No.2641 of

2018 he submits that Section 50 casts a duty on the empowered officer

to apprise the person proposed to be searched of his right to be

searched before a gazetted officer or Magistrate. It is only in a case

where the accused so requires, the personal search is required to be

conducted in the presence of the Magistrate or the Gazetted Officer.

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He contends that search of the Applicant was taken in presence of a

Gazetted Officer, which meets the requirements of Section 50 of the

NDPS Act. No bias, unreasonableness or unfairness can be attributed

to the Gazetted Officer merely because he is a member of the raiding

party. Such presumption is not legally tenable and it is for the

Applicant to establish prejudice which could be only at the stage of

trial.

8. He submits that the decision in Parmanand (supra) is per

incuriam as it does not reconcile with or take into consideration the

law laid down by the Apex Court in State of Rajasthan vs. Ram

Chandra (2005), 5 SCC 151 and Vijaysinh Chandubha Jadeja Vs. State

of Gujarat (2011) 6 SCC 609. He further submits that in SK. Raju

(supra) the Apex Court has only made a passing reference to the

judgment of Parmanand (supra) and has not confirmed or concurred

the view in Parmananda. He therefore contends that the decision in

SK. Raju is of no avail to the Applicant.

9. He submits that the Applicant was found in possession of

commercial quantity of contraband. The offence is of serious nature,

which has a deadly impact on the society. Referring to Section 37 of

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the NDPS Act and relying upon the decision of the Supreme Court in

State of Kerala vs. Rajesh and Ors. (2020) 12 SCC 122 and Narcotic

Control Bureau vs. Mohit Agarwal, Criminal Appeal No.1001-1002 of

2022, he submits that the length of the period of custody or that the

charge-sheet has been filed is per se not a ground to release the

Applicant on bail.

10. I have perused the records and considered the submissions

advanced by the learned counsel for the respective parties.

11. A perusal of the records reveal that on 27/03/2021, the

Intelligence Officer, NCB, Mumbai, had received specific information

that one person by name -Abdul Kadir was likely to deliver substantial

quantity of Mephedrone (MD) to a customer near Mao Chinese

Bhangar Shah Baba Darga, Mahim. The information was reduced in

writing and placed before the Superintendent, NCB, Mumbai and Zonal

Director, NCB. As per the instructions, the Intelligence Officer

alongwith panchas and the other members of the NCB team went to

the place disclosed by the Informant. It is the case of the prosecution

that at about 21:25 hours, one person, as described in the information

note, came to the spot and while he was waiting for someone, the

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Intelligence Officer accosted him. The Intelligence Officer introduced

himself and sought identity of the said person. The said person

disclosed his name as Abdul Kadir. The Intelligence Officer was

satisfied that the person accosted was the same person mentioned in

the information note. The Intelligence Officer introduced the other

NCB officers and the panchas to the Applicant herein and informed him

about the specific information received by him. It is alleged that after

initial hesitance, the Applicant removed one white colour plastic bag

from the right pocket of his jeans and handed over the same to the

Intelligence Officer. The said plastic bag contained a zip lock plastic

pouch with white colour crystal type substance. The Applicant

disclosed that the said substance was Mephedrone.

12. It is the case of the prosecution that the Intelligence Officer

had apprised the Applicant of his right to be searched in presence of a

Gazetted Officer or a Magistrate and further informed him that Samir

Wankhede, Zonal Director was also one of the members of the NCB

team, is a Gazetted Officer. It is stated that the Applicant agreed for

personal search by any of the Officers of the NCB team. Accordingly,

his personal search was taken in presence of the Zonal Director, Samir

Wankhede and one red colour mobile phone and a key of a motorcycle

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was recovered.

13. The Applicant has alleged non-compliance of Section 50(1)

of the NDPS Act, which undisputedly casts a duty on the empowered

officer to apprise the suspect of his right to be searched before the

nearest Magistrate or a Gazetted Officer. In Vijaysinh Chandubha

Jadeja (supra), the Hon'ble Supreme Court has held that the mandate

of section 50 is precise and clear viz., if the person intended to be

searched expresses to the authorized officer his desire to be taken to

the nearest Gazetted Officer or the Magistrate, he cannot be searched

till the Gazetted Officer or the Magistrate, as the case may be, directs

authorized officer to do so. It is emphasized that the object with which

the right under section 50(1) of the NDPS Act by way of a safeguard,

has been conferred on this aspect viz. to check the misuse of power, to

avoid harm to innocent person and to minimize the allegations of

planting or foisting of false cases by the law enforcement agencies, it

would be imperative on the part of the empowered officer to apprise

the person intended to be searched of his right to be searched before a

Gazetted Officer or a Magistrate. The Hon'ble Supreme Court has held

that the obligation under Sub-Section 1 of section 50 of the NDPS Act

is mandatory and requires strict compliance and the concept of

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'substantial compliance' is neither borne out from the language of

section 50(1) nor in consonance with the dictum laid down in Baldev

Singh case (1974) 2 SCC 33. Failure to comply with the provision

would render the recovery of illicit article suspect and vitiate the

conviction if the same is recorded only on the basis of the recovery of

the illicit article from the person of the accused during such search. It

is held that thereafter the suspect may or may not choose to exercise

the right provided to him under the said provision.

14. In Parmanand (supra), the accused were apprised that they

could be searched before the nearest Magistrate or before the nearest

Gazetted Officer or before the Superintendent, who was part of the

raiding party. The third option was held to be in breach of Section 51

of the NDPS Act. The Hon'ble Supreme Court held that the idea behind

taking an accused to the nearest Magistrate or nearest Gazetted Officer,

if he so requires, is to give him a chance of being searched in the

presence of an independent officer and it was improper to give the

accused a third alternative of being searched before the

Superintendent, who was a part of the raiding party and who could not

be called as an independent officer.

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15. It is pertinent to note that in Ram Chandra (supra), the

superior officer had arrived at the spot after the person was detained

and search was proposed to be done by the officer authorized. It was

in this context that the Hon'ble Supreme Court observed that " the

object of the Act being that the search is conducted in the presence of a

superior officer, in order to lend transparency and authenticity to the

search, it cannot be held as a principle in law that if a superior officer

happens to be the officer authorized (which) the High Court has

described as the member of a raiding party) the position would be

different. The High Court proceeds on the basis that there may be bias

on the part of the officer because he was accompanying the officer

authorized. Such a presumption is not legally available."

16. A three Judge Bench of the Hon'ble Supreme Court in SK.

Raju (supra), while considering the scope of Section 50(1) has held

that an empowered officer should necessarily inform the suspect about

his legal right, if he so requires, to be searched in the presence of a

gazetted officer or a Magistrate. Referring to the decision in Vijaysinh

(supra) it was reiterated that strict compliance with Section 50(1) by

the empowered officer is mandatory in the case of search of a person.

The Hon'ble Supreme Court considered the decision in Parmanand

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(supra) and distinguished it on facts. I am unable to accept the

contention of learned Counsel for the NCB that the decision in

Parmanand (supra) is per incuriam and that the Hon'ble Supreme

Court has only made a passing reference to the said decision in SK.

Raju (supra).

17. There can be no dispute that the police officer being a

Gazetted Officer is not disqualified to witness a search in terms of

Section 50 of the NDPS Act. However, as held by the Apex Court in

Parmanand (supra), such superior officer who is a part of the

investigating team, cannot be considered as an independent officer. As

noted above, the Constitutional Bench in Vijaysinh Chandubha Jadeja

(supra) has emphasized that the object of the Section 50 is to check the

misuse of power and to minimize the allegations of planting or foisting

false cases by the law enforcement agencies. An offence under the

NDPS Act being grave, the procedural safeguards provided under the

statute require strict compliance and breach thereof will frustrate the

very object of the provision. It is in this context that the presence of an

independent Gazetted Officer, not being part of a raiding party or

investigating team assumes importance.

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18. In the instant case, the Applicant had allegedly kept the

contraband in the pocket of his jeans. The panchanama as well as the

complaint reveals that the Applicant was apprised that he could be

searched before the nearest Magistrate or a Gazetted Officer. He was

further informed that Samir Wankhede, who was a member of the

raiding team was also a Gazetted Officer. It is alleged that the Applicant

stated that he could be searched by any of the members of NCB team

and thereafter he was searched in presence of Samir Wankhede. It is

not in dispute that Samir Wankhede was a member of the raiding party

and hence he cannot be considered as an independent witness. No

doubt the question whether the procedure prescribed under Section

50(1) has been followed or not is a matter of trial, nevertheless, prima

facie, it appears that there is no compliance of Section 50(1) of the

NDPS Act.

19. The records reveal that the Intelligence Officer had weighed

the substance recovered from the Applicant and the total weight was

found to be 55 gms. The substance and the plastic pouch were

separately weighed and the weight of the substance was 52 grams and

that of the plastic pouch was 3 gms. The substance was put in a zip

lock polythene bag, which was sealed with NCB seal-marked as 'M-1'

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was deposited in the godown of NCB-Mumbai on 28/03/2021 under

receipt entry No.126 of 2021. On 23/07/2021 an application was

made to the Metropolitan Magistrate to draw sample from bulk

muddemal. Accordingly, the muddemal was produced before the

Metropolitan Magistrate and two representative samples were drawn

from the whole quantity and marked Exhibit -M-1 S-1. The sample was

forwarded to CFSL and as per the report Mephedron was detected in

the sample M-1 S-1.

20. The records reveal that though the contraband was seized

on 27.3.2021, an application for drawing sample was made before the

Magistrate only on 23.7.2021. The sample was drawn and forwarded

to CFSL on the same day i.e. on 23.7.2021. There is inordinate delay

in making an application / drawing of sample and certification, and

forwarding the sample to the CFSL for analysis. This is not in

consonance with the dictum of the Apex Court in Union of India vs.

Mohanlal (2016) 3 SCC 379, wherein the Apex Court has held that

application for sampling and certification ought to be made without

undue delay. Though the Hon'ble Supreme Court has not prescribed a

time frame, it has been emphasized that such process has to be

completed within reasonable time. In the instant case, the application

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for sampling and certification was made after four months, which

prima facie cannot be considered as reasonable time.

21. The panchnama and the complaint indicate that the total

weight of the substance and the plastic bag, seized by the investigating

agency, was 55 grams and when weighed separately, the weight of the

contraband was 52 grams, and that of the plastic bag was 3 grams. The

certificate under Section 52A(2) of the NDPS Act issued by the

Metropolitan Magistrate reveals that the weight of the contraband and

the plastic pouch was 57.7 grams. Prima facie, there is discrepancy in

the weight of the contraband which was seized and the weight of the

contraband that was forwarded to the Magistrate under Section 52A of

the NDPS Act. The reply filed by the intelligence officer does not offer

any explanation for the delay in making an application before the

Magistrate for drawing the sample and certification or the discrepancy

in the weight of the substance seized from the Applicant. The above

discrepancies prima facie raise a reasonable doubt about the

involvement of the Applicant in the aforesaid crime. Consequently, the

rigour of Section 37 of the NDPS Act would not be applicable. It is

stated that the Applicant has no criminal antecedents. He is in

custody since last two years and considering the large pendency of the

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cases and the fact that the charge is not yet framed, the trial is not

likely to be concluded within a reasonable time. In such circumstances,

prolonged incarceration and deprivation of personal liberty would be

violative of the fundamental rights conferred by Article 21 of the

Constitution of India. Reliance is placed on the decision in Rabi

Prakash Vs. The State of Odisha in Special Leave to Appeal (Crl.)

No.4169 of 2023 wherein the Hon'ble Supreme Court has observed

that "The prolonged incarceration, generally militates against the most

precious fundamental right guaranteed under Article 21 of the

Constitution and in such a situation, the conditional liberty must

override the statutory embargo created under Section 37(1)(b)(ii) of

the NDPS Act.

22. Hence, the Application is allowed on the following terms

and conditions :-

(i) The Applicant, who is facing trial in NDPS Special

Case No.1189 of 2021 pending on the file of

Special Court (C.R.42) (NDPS) at Greater

Bombay, he is ordered to be released on cash bail

in the sum of Rs. 50,000/- for a period of four

weeks;

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(ii) The Applicant shall within the said period of four

weeks furnish PR bonds in the sum of Rs.50,000/-

with one or two sureties to the like amount;

(iii) The Applicant shall report NCB, Mumbai Zonal

Unit, Mumbai, once in three months on the first

Monday of the month between 11.00 a.m. to 2.00

p.m.

(iv) The Applicant shall co-operate with the conduct

of the trial and attend the trial Court on all dates,

unless exempted.

(v) The Applicant shall not leave the State of

Maharashtra without prior permission of the

court.

(vi) The Applicant shall not interfere with the

witnesses or tamper with the evidence in any

manner.

(vii) The Applicant shall keep the Investigating

Officer informed of his current address and

mobile contact number, and/or change of

residence or mobile details, if any, from time to

time.

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23. The application stands disposed of.

24. It is made clear that observations made hereinabove be

construed as expression of opinion only for the purpose of bail and the

same shall not in any way influence the trial in other proceedings.

(SMT. ANUJA PRABHUDESSAI, J.)

Signed by: Megha S. Parab Designation: PA To Honourable Judge 17/17 Date: 16/09/2023 17:47:19