Bombay High Court
Arbaz Ahmed Ali Khan vs State Of Maharashtra on 5 February, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:5612
2-BA1860-2023.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 1860 OF 2023
Arbaz Ahmed Ali Khan ...Applicant
Versus
The State of Maharashtra ...Respondent
Ms. Zehra Charania, for the Applicant.
Mr. S. R. Aagarkar, APP for the State/Respondent.
CORAM: N. J. JAMADAR, J.
DATED: 5th FEBRUARY, 2024
PC:-
1. Not on board. Mentioned. Taken on board.
2. The matter is placed for speaking to the minutes of
order dated 29th January, 2024.
3. In the said order, paragraph 13:
"13. Having regard to the stringent punishment
which the offences under NDPS Act entail and
restrictions in the matter of grant of bail, these
factors cannot be wished away as inadvertent
omission or typographical errors. It would be
suffice to make a reference to the Constitution
Bench judgment of the Supreme Court in the
case of Vijaysinh Chandubha Jadeja vs. State of
Gujarat, wherein the Supreme Court enunciated
that the concept of "substantial compliance"
with the requirement of Section 50 of the NDPS
Act introduced and read into the mandate of the
said Section in Joseph Fernandes vs. State of
Goa and Prabha Shankar Dubey vs. State of
M.P., Krishna Kanwar vs. State of Rajasthan in
State of Punjab vs. Baldev Singh. The Supreme
Court emphasized that in so far as the
2-BA1860-2023.DOC
obligation of the authorized officer under sub-
section (1) of Section 50 of the NDPS Act is
concerned it is mandatory and requires strict
compliance. Failure to apply that provision
would render the recovery of the illicit article
suspect and vitiate the conviction and sentence
of an accused, where the conviction has been
recorded only on the basis of the possession of
the illicit article with the person of the accused
during such search."
be substituted as under:
"13. Having regard to the stringent punishment
which the offences under NDPS Act entail and
restrictions in the matter of grant of bail, these
factors cannot be wished away as inadvertent
omission or typographical errors. It would be
suffice to make a reference to the Constitution
Bench judgment of the Supreme Court in the
case of Vijaysinh Chandubha Jadeja vs. State
of Gujarat, wherein the Supreme Court
enunciated that the concept of "substantial
compliance" with the requirement of Section 50
of the NDPS Act introduced and read into the
mandate of the said Section in Joseph
Fernandes vs. State of Goa and Prabha
Shankar Dubey vs. State of M.P., Krishna
Kanwar vs. State of Rajasthan is neither borne
out from the language of sub-section (1) of
Section 50 nor it is in consonance with the
dictum laid down in State of Punjab vs. Baldev
Singh. In Baldev Singh (supra) the Supreme
Court emphasized that in so far as the
obligation of the authorized officer under sub-
section (1) of Section 50 of the NDPS Act is
concerned it is mandatory and requires strict
compliance. Failure to apply that provision
would render the recovery of the illicit article
suspect and vitiate the conviction and sentence
of an accused, where the conviction has been
recorded only on the basis of the possession of
the illicit article with the person of the accused
during such search."
2-BA1860-2023.DOC
4. Rest of the order remains unaltered.
5. Order dated 29th January, 2024 be corrected accordingly
and uploaded.
[N. J. JAMADAR, J.]
