Bombay High Court
Manav Rajesh Hajarati@Maanav Rajesh ... vs State Of Maharashtra on 30 January, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:5278
4-ba-2831-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.2831 OF 2023
Manav Rajesh Hajarati @
Maanav Rajesh Hazrati ...Applicant
vs.
The State of Maharashtra ...Respondent
Mr. Atul Sarpande a/w. Mr. Vikas Chavan, Mr. Kamlesh Satre, for
the Applicant.
Mr. S.R. Agarkar, APP, for the Respondent/State.
Mr. G.L. Shewale, PI, and Mr. S.R. Ugalmugale, Crime Branch, Thane
City present.
CORAM : N. J. JAMADAR, J.
DATE : JANUARY 30, 2024
P.C.:
1. The applicant, who is arraigned in C.R. No.885 of 2021
registered with Mumbra police station for the offences punishable
under sections 20 and 22 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (the NDPS Act, 1985), seeks to be enlarged on
bail.
2. On 10th September, 2021 pursuant to an intimation, Mumbra
police conducted a surveillance, behind a Kalsekar hospital,
Mumbra. The applicant was allegedly found on the ground behind
the Kalsekar Hospital. The police party entertained a suspicion that
the applicant was selling Charas. The applicant was accosted. The
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applicant was apprised of his right to be searched in the presence of
the Magistrate. The applicant gave consent to be searched by police.
It is alleged, in the search, the applicant was found carrying a
plastic bag containing a substance which appeared to be Charas.
The contraband article weighed 1035 gms. It was seized and
samples were collected. The applicant came to be arrested. Post
completion of investigation, charge sheet has been lodged.
3. Mr. Sarpande, learned counsel for the applicant, submitted
that the search is completely vitiated for non-compliance of the
mandate contained in section 50 of the NDPS Act, 1985. It was
further submitted that the information to the superior officer as
provided under section 42(2) of the NDPS Act, 1985 was also not
given. The applicant is in custody since 10 th September, 2021.
Therefore, as the trial would stand vitiated for non-compliance of
the mandatory provisions, the applicant be released on bail.
4. Mr. Agarkar, learned APP for the State, opposed the prayer
for bail. It was submitted hat the applicant was found in possession
of commercial quantity of contraband articles and therefore the
interdict contained in section 37 of the NDPS Act, 1985 comes into
play. It was submitted that there is substantial compliance with the
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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.
5. 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 search in the
presence of Gazetted Officer or Magistrate.
6. To start with, the alleged non-compliance of section 50 of
NDPS Act, 1985. By a catena of decisions, the legal position has
been crystallized to the effect that there should be scrupulous
compliance of the provisions contained in section 50 of the NDPS
Act, 1985 and the contention that there is substantial compliance of
the mandate contained in section 50 of the NDPS Act, 1985 does not
merit countenance.
7. In the backdrop of the stringent punishment which the
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offences under the NDPS Act, 1985 entail and the statutory
restrictions in the matter for grant of bail, scrupulous compliance of
the provisions contained in section 50 of the NDPS Act, 1985 is
insisted upon. The non-compliance of the said provision causes
serious prejudice to the accused as he is deprived of the statutory
right to be searched in the presence of the Gazetted Officer or a
Magistrate. This measure is introduced by the legislature to act as a
dyke against planting or false implication.
8. Reverting to the facts of the case, in the FIR as well as the
seizure panchanama, it is recorded that the empowered officer
allegedly informed the applicant that the applicant had right to be
searched in the presence of "another" Magistrate or gazetted officer.
The apprisal note dated 10th September, 2021 (page 31 of the
application) indicates that the question that was put to the
applicant was, "since Mr. Gitaram Shevale, the empowered officer
was himself a gazetted officer, whether the applicant desired to be
searched in the presence of another gazetted officer and, if he so
desired, another gazetted officer would be called."
9. Prima facie, the aforesaid apprisal is in teeth of the provisions
of section 50 of the Act, 1985. The apprisal of the right to be
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searched under section 50 of the Act, 1985 has to be clear and
unambiguous. The assertion of the empowered officer that he
himself was a gazetted officer has the effect of making the person to
be searched to believe that he can not insist for the search in the
presence of another gazetted officer. Secondly, the apprisal memo
does not indicate that the applicant was informed of his right to be
searched in the presence of the Magistrate. Thus it suffers from
twin infirmities. One, declaration by empowered officer that he
himself was a gazetted officer. Two, the omission to apprise the
applicant of his right to be searched in the presence of the
Magistrate.
10. Prima facie, the communication of the right under section 50
of the Act, 1985 appears infirm. 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 1,
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 Goa2 and Prabha Shankar Dubey
1 2011(1) SCC 609.
2 (2000)1 SCC 707.
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vs. State of M.P.3, Krishna Kanwar vs. State of Rajasthan4 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 the case of State of
Punjab vs. Baldev Singh5. 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.
11. The conspectus of the aforesaid consideration is that for want
of scrupulous compliance of the mandate contained in section 50 of
the Act, 1985, the search, prima facie, stands vitiated. Therefore, an
inference can be justifiably drawn that the applicant may not be
guilty of the offences punishable under sections 20 and 22 of the
NDPS Act, 1985 with which he stands charged.
12. The Court is not informed that there are antecedents of the
3 (2004) 2 SCC 56.
4 (2004) 2 SCC 608.
5 (1999) 6 SCC 172.
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applicant which would justify an inference that if the applicant is
released on bail, he would indulge in identical offences. Thus, the
twin test can be said to have been satisfied.
13. In any event, the applicant is in custody since 10 th September,
2021. Having regard to the large pendency of the cases, it is
unlikely that the trial can be concluded within a reasonable period.
Long period of incarceration with no reasonable prospect of
expeditious conclusion of trial also justifies the exercise of the
discretion to grant bail, despite statutory restrictions as the rigour
melts down on account of the infringement of the right to speedy
trial. I am, thus, inclined to allow the application.
Hence, the following order.
ORDER
1] The application stands allowed.
2] The applicant be released on bail in C.R. No.885 of 2021
registered with Mumbra police station, 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.
3] The applicant shall mark his presence at the Mumbra
police station on the first Monday of every month in between
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10.00 am. to 12.00 noon for the period of three years or till
conclusion of the trial, whichever is earlier.
4] The applicant shall not tamper with the prosecution
evidence and give threat or inducement to first informant,
any of the prosecution witnesses or any person acquainted
with the facts of the case.
5] The applicant shall furnish his contact number and
residential address to the investigating officer and shall keep
him updated, in case there is any change.
6] The applicant shall regularly attend the proceedings before
the jurisdictional Court.
7] The applicant shall not indulge in identical activity for
which he has been arraigned in this case.
8] 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 disposed.
(N. J. JAMADAR, J.)
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