Bombay High Court
Nikhil Mahesh Malkarnekar vs State Of Maharashtra on 6 August, 2024
Author: N.J.Jamadar
Bench: N.J.Jamadar
2024:BHC-AS:31662
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.2959 OF 2022
Nikhil Mahesh Malkarnekar ... Applicant
versus
State of Maharashtra ... Respondent
WITH
INTERIM APPLICATION NO.1488 OF 2024
Mr. Advait Tamhankar, for Applicant.
Mr. A.A.Naik, APP for State.
CORAM: N.J.JAMADAR, J.
DATE : 6 AUGUST 2024
P.C.
1. Heard the learned Counsel for the parties.
2. The applicant, who is arraigned in C.R.No.62 of 2021 registered with Anti
Narcotic Cell, Worli Unit, Mumbai, for the offences punishable under Sections 22(c),
22(b) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, seeks to
be enlarged on bail.
3. On 16 July 2021, ANC Police Worli Unit, were on patrolling duty near Paradise
Cinema, Bhagoji Kir Marg, Mahim, Mumbai. Shivarth Raaj Dutt (A1) was found
waiting for someone. His movements appeared suspicious. After noticing the police
party, Shivarth Dutt (A1) tried to flee away. He was accosted. In the personal search
of Shivarth Dutt (A1), a small transparent plastic bag, stapled with pins, was found
concealed in another plastic bag which Shivarth Dutt (A1) was carrying. The said
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substance appeared to be Mephedrone (MD). It weighed 70 gms. The contraband
substance was seized and samples were collected and marked A1 and A2. Shivarth
Dutt (A1) disclosed that he had procured the said contraband substance from Nikhil
(A2) - Applicant. Shivarth Dutt (A1) led the police party to the house of the
applicant. The applicant was appraised about his right under Section 50 of the Act,
1985. In the search of the applicant, in the presence of public witnesses, a transparent
pouch containing a white substance was found and the said substance appeared MD.
It weighed 120 gms. The said substance was seized and samples of 5 gms each were
collected and marked as B1 and B2. Another small pouch was found concealed in the
pocket of the trouser of the applicant. The said transparent pouch contained a white
substance. It appeared to be cocaine. It weighed 15 gms. The samples of the said
substance were collected and marked C1 and C2. The applicant came to be arrested.
4. Mr. Tamhankar, learned Counsel for the Applicant, submitted that co-accused
Shivarth Dutt (A1) has been enlarged on bail by this Court by an order dated 30 April
2024. Therefore, the applicant is also entitled to be released on bail.
5. Learned APP resisted the prayer for bail. It was submitted that co-accused
Shivarth Dutt (A1) was released on bail on the ground of non-compliance of the
provisions contained in Section 52-A of the Act, 1985. However, the investigating
agency has complied with the provisions contained in Section 52-A of the Act, post
filing of the chargesheet on 24 January 2023. A copy of the inventory panchanama
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conducted before the learned Magistrate and a certificate under sub-section (3) of
Section 52-A of the Act, issued by the learned Metropolitan Magistrate, 64 th Court,
Esplanade, Mumbai, were tendered for the perusal of the Court.
6. Evidently, the applicant was apprehended pursuant to the disclosure made by
Shivarth Dutt (A1). In fact, the contraband substances were seized from Shivarth
Dutt (A1) and the applicant in the course of one and the same seizure. Prima facie,
the role attributed to the applicant and Shivarth Dutt (A1) appears to be, by and large,
similar.
7. While releasing Shivarth Dutt (A1) on bail, this Court had observed, inter alia,
as under :
7. From the perusal of seizure panchanama, it becomes evident
that the samples of the contraband allegedly seized from the applicant
were marked A1 and A2 and the samples of the contraband seized from
Nikhil Malkarnekar (accused No. 2) were marked B1 and B2 (MD) and
C1 and C2(Cocaine). The forwarding letter dated 19th July, 2021
indicates that the sample of MD (A1) allegedly seized from the
applicant was forwarded for analysis on 19 th July, 2021. The C.A report
dated 21st October, 2021 (page 21) indicates that the sample (A1) was
received on 19th July, 2021 and MD was detected in the said exhibit.
Evidently, the CA report is based on the analysis of the sample collected
at the time of the seizure.
8. The investigating officer does not seem to have conducted the
inventory of the articles seized from the accused, and got the said
inventory certified by, and samples drawn before, the jurisdictional
Magistrate. In a line of decisions, the Supreme Court has held that the
drawing of the samples at the time of seizure is not envisaged by the
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provisions contained in the NDPS Act, 1985. The provisions contained
in section 52A of the NDPS Act, 1985 have been held to be mandatory.
9. A profitable reference in this context can be made to the
decision of the Supreme Court in the case of Union of India V/s.
Mohanlal and Anr.1, wherein the Supreme Court held that the
procedure prescribed in Section 52-A is of mandatory nature and it was
obligatory to prepare an inventory of seized contraband and then make
an application to the Magistrate for the purpose of getting its
correctness certified. The observations in paragraphs 15 to 17 read as
under :
"15.It is manifest from Section 52-A(2)(c) (supra) that upon
seizure of the contraband the same has to be forwarded either to the
officer in-charge of the nearest police station or to the officer
empowered under Section 53 who shall prepare an inventory as
stipulated in the said provision and make an application to the
Magistrate for purposes of (a) certifying the correctness of the
inventory (b) certifying photographs of such drugs or substances taken
before the Magistrate as true and (c) to draw representative samples in
the presence of the Magistrate and certifying the correctness of the list
of samples so drawn.
16. Sub-section (3) of Section 52-A requires that the Magistrate
shall as soon as may be allow the application. This implies that no
sooner the seizure is effected and the contraband forwarded to the
officer in charge of the Police Station or the officer empowered, the
officer concerned is in law duty bound to approach the Magistrate for
the purposes mentioned above including grant of permission to draw
representative samples in his presence, which samples will then be
enlisted and the correctness of the list of samples so drawn certified by
the Magistrate. In other words, the process of drawing of samples has to
be in the presence and under the supervision of the Magistrate and the
entire exercise has to be certified by him to be correct.
17. The question of drawing of samples at the time of seizure
which, more often than not, takes place in the absence of the Magistrate
does not in the above scheme of things arise. This is so especially when
according to Section 52-A(4) of the Act, samples drawn and certified by
the Magistrate in compliance with sub-section (2) and (3) of Section 52-
A above constitute primary evidence for the purpose of the trial. Suffice
it to say that there is no provision in the Act that mandates taking of
samples at the time of seizure. That is perhaps why none of the States
claim to be taking samples at the time of seizure."
1 (2016) 3 SCC 379
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10. In the case of Yusuf @ Asif V/s. State , the Supreme Court
2
after following the decision in the case of Union of India V/s.
Mohanlal (supra), enunciated, as under :
"16. In the absence of any material on record to establish that
the samples of the seized contraband were drawn in the presence of the
Magistrate and that the inventory of the seized contraband was duly
certified by the Magistrate, it is apparent that the said seized contraband
and the samples drawn therefrom would not be a valid piece of primary
evidence in the trial. Once there is no primary evidence available, the
trial as a whole stands vitiated."
11. In the case of Simaranjit Singh V/s. State of Punjab3, the
Supreme Court after extracting the observations in paragraphs 15 to 17
(extracted above) in the case of Union of India V/s. Mohanlal (supra),
observed that the act of the officer drawing samples from all the packets
at the time of seizure is not in conformity with the law laid down by
Supreme Court Court in the case of Mohanlal (supra). That creates a
serious doubt about the prosecution case that substance recovered was
a contraband, and the Supreme Court, thus, set aside the judgment of
conviction and sentence.
12. The case at hand, is of total non-compliance of the section 52A.
In the absence of the said exercise of the certification of the inventory
and drawing of the samples before the jurisdictional Magistrate, there
would be no primary evidence and the CA report, on which the
prosecution banks upon would be bereft of any evidentiary value.
13. Thus the prosecution will have to surmount the hurdle of total
non-compliance of the section 52A of the NDPS Act, 1985. Resultantly,
I am impelled to hold that the applicant/accused may not be guilty of
the offence for which he has been arraigned. The Court is not informed
that the applicant has antecedents. Hence, the Court may be justified in
drawing a further interference that the applicant will not indulge in
identical offences if enlarged on bail. Thus the interdict contained in
section 37 of the NDPS Act, 1985 may not be attracted."
2 Cri.Appeal 3191 of 2023 Dt.13/10/2023.
3 2023 SCC Online SC 906.
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8. Qua the seizure of the contraband from the applicant, it appears the sample
of MD (B1) and Coacine (C1) were forwarded to the CA under forwarding letter dated
19 July 2021. The CA report (page 48) dated 21 October 2021 is based on the analysis
of the very samples (B1) and (C1) collected at the time of seizure. Thus, the aforesaid
reasons which weighed with this Court in enlarging co-accused Shivarth Dutt (A1), on
bail, apply with equal force.
9. The endeavour of the learned APP to bank upon the inventory panchanama
conducted before the learned Magistrate on 24 January 2023 does not advance the
cause of the prosecution. Evidently, the inventory panchanama was conducted after
one and half year of the alleged seizure. In the case of Union of India V/s. Mohanlal
(supra), the Supreme Court has emphasised that the proceedings under Section 52-A
of the Act, are required to be conducted as expeditiously as possible and the said
exercise does not brook any delay. Compliance with the provisions contained in
Section 52-A of the Act, after one and half year of the seizure cannot be said to be in
conformity with the object of Section 52-A of the Act. In any event, the prosecution
case rests on the analysis of the samples collected at the time of the seizure.
Therefore, the applicant deserves the same dispensation as has been extended to the
co-accused Shivarth Dutt (A1).
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10. Hence, the following order :
ORDER
(i) The Application stands allowed.
(ii) The Applicant - Nikhil Mahesh Malkarnekar be released on bail in
C.R.No.62 of 2021 registered with Anti Narcotic Cell, Worli Unit, Mumbai on
furnishing a PR bond in the sum of Rs.1,00,000/- and one or two sureties in the like
amount to the satisfaction of the trial Court.
(iii) The applicant shall mark his presence before ANC, Worli Unit, Mumbai
on first Monday of every month between 11 am to 1 pm for a period of three years or
till the conclusion of the trial, whichever is earlier.
(iv) The applicant shall not tamper with the prosecution evidence. 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.
(v) 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.
(vi) The applicant shall regularly attend the proceedings before the
jurisdictional Court.
(vii) By way of abundant caution, it is clarified that the observations made
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hereinabove are confined for the purpose of determination of the entitlement for bail
and they may not be construed as an expression of opinion on the guilt or otherwise of
the applicant and the trial Court shall not be influenced by any of the observations
made hereinabove.
(viii) Interim Application also stands disposed.
( N.J.JAMADAR, J. )
Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 08/08/2024 18:44:29
