Bombay High Court
Arbaz Ahmed Ali Khan vs State Of Maharashtra on 29 January, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:4686
6-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
Mr. Ayaz Khan, for the Applicant.
Mrs. Geeta Mulekar, APP for the State/Respondent.
Mr. Bhushan Bendre, for the Intervener.
API Sudhir Patil, EOW, Thane City, present.
CORAM: N. J. JAMADAR, J.
DATED: 29th JANUARY, 2024
ORDER:
-
1. Heard the learned Counsel for the parties.
2. By this application under Section 439 of the Code of
Criminal Procedure, 1973 ("the Code"), the applicant, who is
arraigned in Special Case No.762 of 2021 arising out of CR
No.331 of 2021 registered with Mira Road Police Station,
Mumbai, for the offences punishable under Sections 21(b) and
22(b) read with Section 8(c) of the Narcotic Drugs and
Pshychotropic Substances Act, 1985 ("the NDPS Act") seeks to
be enlarged on bail.
3. On 26th September, 2021, the police party was on a
patrolling duty. In front of Hotel Vakston, the applicant was
6-BA1860-2023.DOC
found moving suspiciously. The applicant was accosted. He
gave evasive replies. The public witnesses were summoned. As a
suspicion was entertained that the applicant might be
possessing contraband articles, he was searched in the
presence of the public witnesses. In the search, a plastic pouch
was found in the left pocket of the trouser of the applicant. The
said pouch contained MD. It weighed 150 gm. The contraband
article was seized and its samples were collected under a seizure
panchnama. The applicant came to be arrested.
4. The applicant preferred an application for bail before the
learned Special Judge, Thane. By an order dated 4 th May, 2023,
the learned Special Judge was persuaded to reject the
application opining inter alia that the twin test envisaged by
Section 37 of the NDPS Act was not satisfied.
5. Mr. Khan, the learned Counsel for the applicant,
submitted that it is a clear case of non-compliance of the
mandate contained in Section 50 of the NDPS Act. Nor the
investigating agency complied with the provisions contained in
Section 52A of the NDPS Act. The material on record, according
to Mr. Khan, indicates that the prosecution case of seizure of
contraband article from the applicant is riddled with
irreconcilable inconsistencies and that justifies an inference
6-BA1860-2023.DOC
that the accused is not guilty of the offence. It was further
submitted that there are no antecedents of the applicant, who is
in custody since 26th September, 2021. Therefore, the applicant
deserves to be released on bail.
6. The learned APP resisted the prayer for bail. It was
submitted that there is substantial compliance with the
provisions contained in Section 50 of the NDPS Act. Since the
commercial quantity of contraband article was found in
possession of the applicant, the applicant cannot be released on
bail.
7. Non-compliance of the provisions contained in Section 50
of the NDPS Act was sought to be substantiated by making a
reference to the allegations in the FIR and the assertions in the
seizure panchnama. In the FIR as well as the seizure
panchnama it was mentioned that a notice was given to the
applicant under Section 50 of the NDPS Act and thereupon the
applicant replied in Hindi verbally as well as in writing that
there was no need of compliance of the provisions contained in
Section 50 of the Act.
8. Mr. Khan submitted that the aforesaid assertions in the
FIR and the seizure panchnama do not constitute the apprisal
of the right to be searched before the Gazetted Officer or
6-BA1860-2023.DOC
Magistrate, as envisaged by Section 50 of the Act. Reliance was
placed on the observations of the Supreme Court in the case of
T. P. Razak alias Nagappan Razak vs. State of Kerala 1, wherein
the Supreme Court observed that the absence of assertion in
the FIR and the seizure memo about the accused having been
asked about his right to be searched before a Gazetted Officer or
Magistrate amounts to non-compliance of the provisions of
Section 50 of the NDPS Act.
9. In the said case, the Supreme Court, inter alia, observed
as under:
"6. As regards compliance with the requirements of
Section 50 of the Act there is only the evidence of P.W. 4 who
has deposed in the Court that before the appellant was
searched he had asked the appellant whether he is to be
taken before a Gazetted Officer or a Magistrate for
conducting the search and that the appellant replied that it
was not necessary. This fact is, however, not mentioned in
the F.I.R., Ex.P.7 as well as in the Seizure Mahazar, Ex.P.l.
P.W.I, the other witness of the search, also does not support
the said version of P.W. 4. The trial Judge did not consider it
necessary to assess the evidence since he was of the view
that it was not necessary to comply with the provisions of
Section 50 of the Act. The High Court has also proceeded on
the basis that the provisions of Section 50 were directory
and non-compliance was not fatal to the prosecution case.
7. Having regard to the fact that the F.I.R. and Seizure
Mahazar do not mention about the appellant having been
asked before the search was conducted as to whether he
would like to be produced before a Gazetted Officer or a
Magistrate and the further fact that P.W.I, the other
independent witness, also does not state about this we are of
the view that the prosecution has filed to establish that
there was compliance with the provisions of Section 50 of
the Act before conducting the search of the appellant. In
view of the non-compliance with the mandatory provisions of
Section 50 of the Act no reliance can be placed on the
1 1995 (Sup4) SCC 256.
6-BA1860-2023.DOC
alleged search of the person of the appellant and the alleged
recovery of four small packets containing 370 mg. of brown
sugar from his possession. The conviction and the sentence
imposed on the appellant cannot, therefore, be upheld and
has to be set aside."
(emphasis supplied)
10. The learned APP attempted to salvage the position by
inviting the attention of the Court to the apprisal memo (page
30 of the application). The apprisal memo sought to be relied
upon by the learned APP, further confounds the confusion. The
said apprisal memo indicates that it was prepared and served
on 29th June, 2021, whilst the search was allegedly conducted
on 26th September, 2021. Secondly, it records that there was a
concrete information that the applicant was in possession of
contraband article. Whereas the FIR proceeds on the premise
that it was a case of chance recovery during the course of
patrolling. The learned APP attempted to wriggle out of the
situation by submitting that, according to her instructions,
there was a typographical error.
11. There are other circumstances which throw a cloud of
doubt over the search. The alleged search and seizure operation
took place between 16.45 pm. to 18.50 pm. on 26 th September,
2021. Yet, the FIR came to be registered on 27th September, 2021
at about 3.00 am. Secondly, in the forwarding letter addressed
to the FSL, it was mentioned at a number of places that the
6-BA1860-2023.DOC
contraband was seized on 27th September, 2021 at about 16.30
pm. The deposit slip of the muddemal property however again
records that seizure was effected on 26th September, 2021.
12. At this stage, these discrepancies and inconsistencies, can
be ignored as being the matters for trial. However, the clear
non-compliance of the mandate contained in Section 50 of the
NDPS Act cannot be brushed aside lightly. Both the FIR and
the seizure memo do not, in terms, record that the applicant
was apprised of his right to be searched before the Gazetted
Officer or Magistrate. The parole evidence sought to be pressed
into service in the form of communication (page 30) also does
not advance the cause of the prosecution as it seems to have
been given few months prior to the alleged search.
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 Gujarat2, wherein the Supreme Court enunciated that
the concept of "substantial compliance" with the requirement of
2 2011(1) SCC 609.
6-BA1860-2023.DOC
Section 50 of the NDPS Act introduced and read into the
mandate of the said Section in Joseph Fernandes vs. State of
Goa3 and Prabha Shankar Dubey vs. State of M.P. 4, Krishna
Kanwar vs. State of Rajasthan5 in State of Punjab vs. Baldev
Singh6. 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.
14. Since there is a clear non-compliance of the mandate of
Section 50 of the NDPS Act, I am impelled to hold that prima
facie the search is vitiated and, therefore, an inference becomes
justifiable that the applicant may not be guilty of the offence
punishable under NDPS Act, for which he has been charged.
The Court is informed that there are no antecedents of the
applicant. It is, therefore, unlikely that the applicant will
indulge in identical offences, if released on bail.
3 (2000)1 SCC 707.
4 (2004) 2 SCC 56.
5 (2004) 2 SCC 608.
6 (1999) 6 SCC 172.
6-BA1860-2023.DOC
15. The applicant is in custody since 27th September, 2021.
Having regard to large pendency of cases, it is unlikely that the
trial can be concluded within a reasonable period.
16. Hence, the following order.
:ORDER:
(i) Application stands allowed.
(ii) The applicant Arbaz Ahmed Ali Khan be released on bail in
Special Case No.762 of 2021 arising out of CR No.331 of 2021
registered with Mira Road Police Station, Mumbai, on furnishing
a P.R. Bond of Rs.1,00,000/- with one or more sureties in the
like amount to the satisfaction of the learned Special Judge.
(iii) The applicant shall mark his presence at the Mira Road
police station on the first Monday of every month in between
10.00 am. to 12.00 noon for the period of three years or till
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
6-BA1860-2023.DOC
officer and shall keep him updated, in case there is any change.
(vi) The applicant shall not indulge in an identical activities for
which he has been arraigned in this case.
(vii) The applicant shall regularly attend the proceedings
before the jurisdictional Court.
(viii) By way of abundant caution, it is clarified that the
observations made 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.
Application stands disposed.
[N. J. JAMADAR, J.]
