Yasar Kutubuddin Shaikh vs The State Of Maharashtra
2024 Latest Caselaw 2517 Bom

Bombay High Court

Yasar Kutubuddin Shaikh vs The State Of Maharashtra on 29 January, 2024

Author: N. J. Jamadar

Bench: N. J. Jamadar

2024:BHC-AS:4687
                                                                    7-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

               Mr. Ayaz Khan, a/w Dilip Mishra i/b Harshita Shroff, for the
                     Applicant.
               Mr. Y. M. Nakhwa, APP for the State/Respondent.
               PSI Bhau Dube, Virar Police Station, present.


                                                  CORAM: N. J. JAMADAR, J.
                                                  DATED: 29th JANUARY, 2024

               ORDER:

-

1. Heard the learned Counsel for the parties.

2. This is an application for bail in Special Case No.310 of

2022 arising out of CR No.657 of 2021 registered with

Kashimira Police Station, Mira-Bhayander, for an offence

punishbale under Section 21(b) read with Section 8(c) of the

Narcotic Drugs and Psychotropic Substances Act, 1985, ("the

NDPS Act").

3. On 26th September, 2021, the Kashmira Police were on a

patrolling duty. At about 12.30 pm., the police party noticed

the applicant loitering in suspicious circumstances in the

parking lot in front of Fountan Hotel, Ghodbandar Junction.

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After noticing the police party the applicant made an attempt

to flee away, post haste. The applicant was, however,

accosted. Panch witnesses were summoned. In the search of

the applicant, in presence of the punch witnesses, a packet

was found in the pocket of the trouser of the applicant. It

appeared to be MD. It weighed 100 gm. It was seized and

samples were collected under the seizure panchnama. The

applicant came to be arrested.

4. The learned Special Judge declined to exercise the

discretion in favour of the applicant as, in the view of the

learned Special Judge, the twin test envisaged under Section

37 of the NDPS Act was not satisfied.

5. Mr. Khan, the learned Counsel for the applicant,

submitted that the search was completely vitiated on account

of the non-compliance of the provisions contained in Sections

42 and 50 of the NDPS Act. The FIR as well as the seizure

panchnama, according to Mr. Khan, indicate that the person

of the applicant was allegedly searched by Mr. Kailas Takale,

Assistant Police Inspector and Mr. Vijay Gaikwad, Police Naik,

who was not an authorized person. Thus, there was breach

of the mandate contained in Section 42 of the NDPS Act.

Secondly, there is a clear non-compliance of the provisions

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contained in Section 50 of the NDPS Act as the applicant was

not at all apprised of the right to be searched before the

Gazetted Officer or Magistrate. Moreover, the empowered

officer has not complied with the mandate contained in

Section 52-A of the NDPS Act.

6. Mr. Nakhwa, the learned APP, submitted that the

applicant was apprised of the right to be searched in the

presence of the Magistrate or Gazetted Officer as is evident

from the apprisal notice (page 40 of the application). The

alleged breach of the provisions contained in Section 42 of

the NDPS Act, according to the learned APP, would be a

matter for determination at the stage of trial and that cannot

be a ground to release the applicant on bail in the face of the

interdict contained in Section 37 of the NDPS Act, 1985.

7. Mr. Khan joined the issue by canvassing a submission

that the compliance of Section 50, sought to be sustained on

the basis of the apprisal notice (page 40), is infirm as the

applicant was asked to furnish the names and address of the

Gazetted Officer, who can be called for the said purpose.

Such apprisal is not in consonance with the mandate of

Section 50 of the NDPS Act. To this end, reliance was placed

on an order passed by this Court on 14 th September, 2022 in

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BA/1801/2021 in the matter of Nadeem Abdul Rahim

Choughule vs. State of Maharashtra.

8. I have perused the FIR and seizure panchnama. The

FIR as well as seizure panchnama are conspicuously silent

about the fact that the applicant was apprised of his right to

searched in the presence of the Gazetted Officer or

Magistrate. The first informant does not at all refer to the

fact that the applicant was made aware of the said right, in

any form whatsoever. In the seizure panchnama it is

mentioned that the API gave a notice to the applicant under

Section 50 of the NDPS Act and, thereupon, the applicant

verbally informed and also made an endorsement thereon,

that the said process was not required. Clearly the material

on record does not indicate that the applicant was apprised

that he had a right to be searched in the presence of the

Gazetted Officer or Magistrate.

9. In the case of State of Punjab vs. Baldev Singh1 the

Constitution Bench of the Supreme Court held that it was

not mandatory to give a written notice in order to show the

compliance of the mandate contained in Section 50 of the

NDPS Act. However, there must be material to indicate that

1(1999) 6 SCC 172.

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the accused was duly apprised by the said right. As noted

above, the FIR and the seizure panchnama are conspicuously

silent about the said apprisal.

10. The notice dated 26th September, 2021 (page 40) relied

upon by the learned APP, in the facts of the case, does not

seem to advance the cause of the prosecution. By the said

notice, the applicant was asked to furnish the name and

address of the Gazetted Officer, who can then be called to

supervise the search. Such contingent apprisal was held by

this Court in the case of Nadeem Choughule (supra) to be not

in consonance with the letter and spirit of Section 50 of the

NDPS Act. The observations in paragraph 5 read as under:

"5. On perusal of the complaint lodged on 06/10/2020 and the panchnama, it can be seen that the said safeguard contemplated under Section 50 has not been adhered to at all. The statements of two panchas as well as the statement of police constable Keshav Nivrutti Shinde, who was present, are also conspicuously silent about the said procedure being followed, which is in form of a statutory mandate. Surprisingly, at page 104, a notice under Section 50 is placed on record in an attempt to demonstrate that the applicant was apprised of the right available to him. When the said letter,allegedly to be issued to the applicant during the course of search is carefully perused, it is stated that he is informed that he has right to be searched in presence of the Magistrate or Gazetted Officer and, therefore, he should disclose the name of such an Officer or the Magistrate alongwith his address so that search can be arranged. Similar such intimation to other two accused persons are placed on record and it can be seen that the said communications are at variance, as the intimation given to accused Dawood Ansari intimates that he has a right to seek his search by the Gazetted Officer or the Magistrate located nearby, and arrangement to that effect can be done. When the communication is perused, prima facie, it

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appears to be an after thought attempt as it does not bear the signatures of the panchas and in the statements of the two panchas, compiled in the charge-sheet, there is no mention of such an intimation given to the accused persons."

11. Secondly, the said communication is prima facie at

variance with the contention in the seizure memo that the

applicant made an endorsement in Hindi that it was not

necessary to follow the said procedure. It simply bears the

signature, purported to be made by the applicant. It does not

bear the signatures of the public witnesses. Nor it bears the

endorsement of the applicant in Hindi.

12. It is well recognized that the compliance of the

provisions contained in Section 50 of the NDPS Act is

mandatory. Substantial compliance would not suffice and

there must be strict compliance with Section 50(1) of the

NDPS Act by the authorised officer.

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 Gujarat2,

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

2 2011(1) SCC 609.

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said Section in Joseph Fernandes vs. State of Goa 3 and

Prabha Shankar Dubey vs. State of M.P. 4, Krishna Kanwar

vs. State of Rajasthan5 and State of Punjab vs. Baldev Singh 6.

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.

14. As regards the alleged non-compliance of the provisions

contained in Section 42 of the NDPS Act on account of search

by two persons, one of them being not empowered . Mr. Khan

invited the attention of the Court to an order dated 7 th

February, 2023 passed by this Court in BA/3158/2021 in the

matter of Aarif Akram Shaikh vs. The State of Maharashtra.

This Court, inter alia, observed as under:

3(2000)1 SCC 707.

4(2004) 2 SCC 56.

5(2004) 2 SCC 608.

6(1999) 6 SCC 172.

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"9. In my opinion, having regard to the language of section 42of the NDPS Act, only the officers mentioned therein are empowered to carry out the search. It may be that the PSI was authorised, but the search was also carried out by the Police Naik. The Police Naik was not authorised to carry out the search. Prima facie, in my opinion, the search carried out also by one of the official (Police Naik) who was not authorised, renders the search illegal. These observations are restricted for considering the application for bail. I am, prima facie, satisfied that there are reasonable grounds for believing that the applicant is not guilty of the offence."

15. I am conscious that the non-compliance of Section 42

of the NDPS Act is held to be a matter to be adjudicated at

the stage of trial. Thus, even if the aspect of non-compliance

of Section 42 is not given much weight, at this stage, yet a

clear case of non-compliance of Section 50 of the NDPS Act is

prima facie made out.

16. The conspectus of the aforesaid consideration is that

since the search appears to have been prima facie vitiated, an

inference become justifiable that the applicant may not be

guilty of the offence punishable under Section Section 21(b)

read with Section 8(c) of the NDPS Act. The Court is not

informed that there are antecedents of the applicant, which

would justify an inference that, if released on bail, the

applicant may indulge in identical offences.

17. The applicant is in custody since 27 th September, 2021.

Having regard to the large pendency of cases, it is unlikely

that the trial can be concluded within a reasonable period.

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18. For the foregoing reasons, I am inclined to exercise the

discretion in favour of the applicant.

19. Hence the following order:

:ORDER:

(i)     Application stands allowed.

(ii)    The applicant Yasar Kutbuddin Shaikh be released on

bail in Special Case No.310 of 2022 arising out of CR No.657

of 2021 registered with Kashimira Police Station, Mira-

Bhayander, on furnishing a P.R. Bond of Rs.1,00,000/- with

one or more sureties in the like amount.

(iii) The applicant shall mark his presence at the Kashimira

Police Station on the first Monday of every alternate 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 officer and shall keep him updated, in case

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there is any change.

(vi) The applicant shall not indulge in 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.]