Bombay High Court
Turre Musa vs The State Of Maharashtra on 23 January, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:3529
1.BA.1352.2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.1352 OF 2023
Turre Musa ...Applicant
vs.
The State of Maharashtra ...Respondent
Mr. Dilip Mishra i/b. Mr. Ayaz Khan for the Applicant.
Mrs. Geeta Mulekar, APP for the Respondent/State.
CORAM : N. J. JAMADAR, J.
RESERVED ON : 5TH JANUARY, 2024
PRONOUNCED ON : 23rd JANUARY, 2024
P.C.:
1. The Applicant who is arraigned in Crime No. 25 of 2019 for
the offences punishable u/s. 22(C) r/w. section 8(C) and 29 of the
Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as "NDPS Act"), u/s. 3(1)(ii), 3(2) and 3(4)
of Maharashtra Control of Organized Crime Act, 1999 (hereinafter
referred to as "MCOC Act"), u/s. 3(2)(a) and 14 of the Foreigners
Act, 1946 and u/s. 5 of the Passport Act, 1920 has preferred this
Application to enlarge him on bail.
2. On 23rd February, 2019 at about 4.30 AM Dongari Police were
on patrol on the railway track at Wadi Bundar. Three persons, who
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appeared to be the foreign nationals, were found loitering
suspiciously. After noticing the police party, the said persons
attempted to flee away. They were chased and accosted.
Preliminary interrogation revealed that those persons were drug
peddlers.
3. After following the procedure prescribed in Section 50 of the
NDPS Act personal search of those persons was conducted in the
presence of two public witnesses. The first person - Okpala Chigbo
Benidict, the Accused No. 1 was found in possession of 55 grams
of Mephedrone (MD). The Accused No. 1 is a Nigerian national. The
contraband article was seized and samples were collected. The
second person was the Applicant. In the personal search of the
Applicant, after apprising him of his right u/s. 50 of the NDPS Act,
61 grams MD was found kept in the right pocket of the trouser.
The contraband article was seized and sample collected. Likewise
in the personal search of Ramond Anitwi, the Accused No. 3, 57
grams of MD was found concealed in the right pocket of the
trouser. The said contraband article was also seized and sealed. A
search was conducted at the premises of Accused No. 4 - Ique
Chickweni Emanual and 20 grams MD was recovered from the
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premises.
4. It transpired during the course of the investigation that
Accused No. 4 - Ique Chickweni Emanual was a habitual drug
peddler. He was operating a drug syndicate. The Applicant and the
Co-accused - Okpala Chigbo Benidict and Ramond Anitwi were
members of the organized crime syndicate of which the Accused
No. 4 - Ique Chickweni Emanual was the gang leader. The
investigation revealed that the Applicant and the co-accused,
including the gang leader, were often seen together and there
were continuous conversations between them. Hence, having
found that the said syndicate indulged in continuing unlawful
activities and more than two charge-sheets were lodged against
the Accused No. 4 - Ique Chickweni Emanual, the provisions
contained in MCOC Act were invoked.
5. Learned Counsel for the Applicant submitted that the
Applicant was arrested on 23rd February, 2019. The charges were
framed on 15th February, 2022. The evidence of prosecution's first
witness is still being recorded. The prosecution proposes to
examine 61 witnesses. Thus, having regard to the fact that for
almost 5 years there has not been any substantial progress in the
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trial, the Applicant deserves to be released on bail on the ground
of long incarceration.
6. Learned Counsel for the Applicant submitted that there is a
clear breach of mandate contained u/s. 50 of the NDPS Act.
Neither the Applicant nor the co-accused, as is evident, was
apprised of the right to be searched in the presence of
"Magistrate". Resultantly, the entire search is vitiated. Thus, the
Applicant deserves to be released on bail for the search having
been vitiated, the Applicant cannot be said to have committed the
offences punishable under NDPS Act. To lend support to this
submission, the learned Counsel for the Applicant placed a strong
reliance on the decision of the Supreme Court in case of
Beckondan Abdul Rahiman vs. State of Kerala reported in
(2002) 4 SCC 229.
7. Mr. Mishra, learned Counsel for the Applicant further
submitted that the invocation of the provisions of MCOC Act was
wholly unwarranted. There are no criminal antecedents of the
Applicant, nor the Applicant has ever been implicated alongwith
Ique Chickweni Emanual, the alleged gang leader, in any of the
offences registered against the said Accused No. 4. Therefore, the
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prosecution case that there is an organized crime syndicate is
wholly unsustainable. Thus, the bar contained u/s. 21 of the MCOC
Act does not come into play.
8. The learned APP resisted the prayer for bail. Taking the Court
through the Affidavit-in-Reply filed by Mr. Kailaschandra B. Avhad,
Assistant Commissioner of Police on behalf of the Respondent, it
was urged that there is adequate material to demonstrate that the
Applicant is a member of the organized crime syndicate. On the
aspect of alleged non-compliance of the mandate contained in
Section 50 of the NDPS Act, it was submitted that the said
question can be decided at the stage of trial. At this juncture, the
alleged non-compliance of Section 50 of the NDPS Act cannot be
delved into while considering the prayer for bail.
9. Learned APP further submitted that the Applicant, being a
foreign national, has no roots. If the Applicant is released on bail,
there is imminent danger of the Applicant fleeing away and not
being available for the trial. Therefore, the Applicant does not
deserve to be released on bail.
10. In cases of the present nature where statutory restrictions in
the matter of grant of bail operate not under one but two
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enactments, the material is required to be appreciated carefully. I
have carefully considered the material on record including the
contentions in the Affidavit-in-Reply filed on behalf of the
Respondent.
11. To begin with, Mr. Mishra has pressed into service the two
grounds. The first, non-compliance of the mandatory requirement
contained in Section 50 of the NDPS Act and, second, the breach
of the provisions contained in Section 52-A of the NDPS Act, 1985.
12. On the first ground, the thrust of the submission of Mr.
Mishra was that in the First Information Report (FIR) as well as the
seizure memo, it is recorded that the Applicant and the co-
accused were apprised of their right to be searched in the
presence of gazetted officer only and "not the Magistrate". The
failure to apprise the person his right to be searched in the
presence of the Magistrate, according to Mr. Mishra, vitiates the
search.
13. In the FIR as well as seizure punchanama, as regards the
compliance of the apprisal of the right to be searched in the
presence of the gazetted officer or the Magistrate, following
endorsement finds mentions:
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"As per NDPS act 1985 sec 50 you have right, to
demand for gazetted officer at the time of your
personal search, we will make the arrangement"
14. Prima facie, the aforesaid apprisal of the right does not
appear to be in conformity with the requirement envisaged by
sub-section (1) of Section 50 of the NDPS Act, 1985, which reads
as under:
"50(1). When any officer duty authorised under
section 42 is about to search any person under
the provisions of section 41, section 42 or section
43, he shall if such person so requires, take such
person without unnecessary delay to the nearest
Gazetted Officer of any of the departments
mentioned in section 42 or to the nearest
Magistrate."
15. It appears that the Applicant was apprised only of his right to
be searched in the presence of nearest gazetted officer and not
"the Magistrate". Since, the right to be searched before the
Magistrate is a valuable right of the person designedly provided by
the legislature to give an element of sanctity to the search and
also rule out the possibility of planting and false implication,
failure to apprise the right to be searched before the Magistrate
cannot be said to be inconsequential. Prima facie, the omission is
such that it erodes the sanctity of the search considerably.
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16. In case of Beckondan Abdul Rahiman (supra), on which
reliance was placed on behalf of the Applicant, the Supreme Court
held that failure to apprise the Accused of his right to be searched
in the presence of Magistrate impairs the search. After following
the constitution bench judgment in case of State of Punjab vs.
Baldev Singh [1999(6) SCC 1721] the Supreme Court
enunciated the law as under:
"5. In this case the violation of the mandatory
provisions is writ large as is evident from the
statement of K.R. Premchandran (PW 1). After
recording the information, the witnesses are not
shown to have complied with the mandate of sub-
section (2) of Section 42 of the Act. Similarly the
provisions of Section 50 have not been complied
with as the accused has not been given any option
as to whether he wanted to be searched in the
presence of a gazetted officer or the Magistrate.
The compliance with Section 50 is held to have
been fulfilled on his (PW 1) asking the accused
"whether I should search him in the presence of
senior officers or a gazetted officer". The accused
was required to be apprised of his right conferred
under Section 50 giving him the option to search
being made in the presence of a gazetted officer or
the Magistrate. The accused is not shown to have
been apprised of his right nor any option offered to
him for search being conducted in the presence of
the Magistrate.
6. We are of the firm opinion that the provisions of
sub-section (2) of Section 42 and the mandate of
Section 50 were not complied with by the
prosecution, which rendered the case as not
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established. In view of the violation of the
mandatory provisions of the Act, the appellant was
entitled to be acquitted. Both the trial court as well
as the High Court have failed to consider this
aspect of the matter which warrants the setting
aside of the impugned judgment."
17. On the aforesaid touchstone, reverting to the facts of the
case, the non-compliance of the mandate of the Section 50 of the
NDPS Act. 1985 is writ large.
18. On the aspect of invocation of the provisions contained in
MCOC Act, I find substance in the submission of Mr. Mishra that
the applicability of bar contained in Section 21 of the MCOC Act is
required to be decided in the light of the material, which prima
facie does not indicate that the Applicant is a member of the
alleged organized crime syndicate led by the Accused No. 4.
19. No crime has been registered against the Applicant apart
from the subject crime. Secondly, the prosecution's claim does not
seem to be based on continuing unlawful activity engaged by the
syndicate on the basis of filing of charge-sheets but on the basis
of the statement of witnesses that they had seen the Accused No.
4 and the Applicant together and the CDR. It is suffice to note the
following contentions in the Affidavit-in-Reply.
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16. I say that there is nexus between the present
Applicant/Accused with co-accused wherein the
Applicant/Accused is a member of "Organized Crime
Syndicate" these accused persons were seen
together by witnesses below the Wadi Bandar
Bridge, on railway Track while selling drugs to drug
addicts. There are witnesses who had seen these
accused staying and moving together. The
photographs of accused persons Remond Anitw @
Ramond Antwi and Applicant/Accused Okpala
Benedict @ Benedith were found in the mobile
phone of accused Remond Anitw @ Remond Antwi.
Same has been extracted from said mobile phone
under the panchnama and with the help of mobile
phone expert. All the accused persons found in
possession of ban Mephedrone (MD) drug at the
time of their arrest and same was seized under the
panchnama."
20. It would be relevant to note that the Applicant is not shown
as Accused in the Special LAC No. 171 of 2015 and CR No. 79 of
2016 in which the charge-sheets have been lodged against the
Accused No. 4-Ique Chickweni Emanual, the gang leader. In the
chart (Exhibit-B) annexed to the Affidavit-in-Reply, apart from
subject crime, there is no antecedent to the discredit of the
Applicant. Thus, the submissions of behalf of the Applicant that
invocation of the provision contained in MCOC Act appears to be
debatable, prima facie, carries substance.
21. Lastly, the aspect of long incarceration. The Applicant is in
custody for almost 5 years. The first witness is in the witness box.
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The prosecution proposes to examine 58 witnesses. It is
realistically not possible to conclude the Trial in near future. This
long period of incarceration impinges upon the right to life
guaranteed under the Constitution and renders the further
detention of the Applicant as an under-trial prisoner
unsustainable.
22. The conspectus of the aforesaid consideration is that prima
facie there appears a fundamental defect in search as the
mandate contained in Section 50 of the Act, 1985 cannot be said
to have been scrupulously adhered to. It also does not appear that
the investigating agency has complied with the provisions
contained u/s. 52-A of the NDPS Act, 1985. The invocation of the
provisions of MCOC Act on the ground that the Applicant is a
member of the organized crime syndicate also seems to be
debatable. To add to this, the prolonged period of incarceration
renders further detention of the Applicant as an undertrial
prisoner unsustainable.
23. I am therefore inclined to hold that the interdicts contained
in section 37 of the NDPS Act and Section 21 of the MCOC Act do
not come into play. There are no criminal antecedents. It is
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unlikely that the Applicant would indulge in the identical offences
for which he has been arraigned in this case. The apprehension on
the part of the prosecution can be taken care of by imposing
stringent conditions.
24. Hence, the following order.
:ORDER:
(i) Application stands allowed.
(ii) The applicant be released on bail in CR No. 25/2019
registered with Dongri Police Station, Mumbai, on fur-
nishing a PR Bond in the sum of Rs.50,000/- with one
or two sureties in the like amount.
(iii) The applicant shall not contact or give threat or
inducement to any of the witnesses or any person
acquainted with the facts of the case.
(iv) Subject to the deportation proceedings which the
authorities may resort to, the Applicant shall surrender
his passport before the Special Court and shall not
leave the jurisdiction of the Special Court without prior
permission.
1.BA.1352.2023.doc
(v) The applicant shall furnish the details of his permanent
address and cell phone number to the Investigating
Officer and keep him informed about the change, if
any.
(vi) The applicant shall regularly attend the proceedings
before the jurisdictional Court.
(vii) By way of abundant caution, it is clarified that the ob-
servations made hereinabove are confined for the pur-
pose 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 observa-
tions made hereinabove.
Application stands disposed.
(N. J. JAMADAR, J.)
