Yasar Kutubuddin Shaikh vs The State Of Maharashtra
2024 Latest Caselaw 3376 Bom

Bombay High Court

Yasar Kutubuddin Shaikh vs The State Of Maharashtra on 5 February, 2024

Author: N. J. Jamadar

Bench: N. J. Jamadar

2024:BHC-AS:5610
                                                                    P1-BA2649-2023.DOC

                                                                                      Santosh

                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CRIMINAL APPELLATE JURISDICTION


                                   BAIL APPLICATION NO. 2649 OF 2023

               Yasar Kutbuddin Shaikh                                        ...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. 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 and State of Punjab vs. Baldev Singh. 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 comply 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

P1-BA2649-2023.DOC

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. 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 comply 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."

4. Rest of the order remains unaltered.

5. Order dated 29th January, 2024 be corrected accordingly

and uploaded.

[N. J. JAMADAR, J.]