Bombay High Court
Sidharth Baban Nanavare vs State Of Maharashtra on 16 January, 2024
Author: Prithviraj K. Chavan
Bench: Prithviraj K. Chavan
2024:BHC-AS:2306 11-BA-1741-2022.doc
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO.1741 OF 2022
Sidharth Baban Nanavare ] Applicant
Vs.
The State of Maharashtra ] Respondent
.....
Ms. Vilasini Balsubramanian i/b Mr. Jaydeep D. Mane, for
Applicant.
Mr. A.A. Palkar, A.P.P, for Respondent - State.
Mr. Amit Munde, Special P.P, for Customs Narcotics Cell (Pune).
.....
CORAM : PRITHVIRAJ K. CHAVAN, J.
DATE : 16th JANUARY, 2024.
P.C.
1. This is an application under section 439 of the Code of
Criminal Procedure, 1973 (for short "Cr. P.C") moved by the
applicant - Sidharth Baban Nanaware, seeking his release on bail in
NDPS C.R. No. 6 of 2019, registered with Narcotic Cell, Custom
Pune for the offences punishable under Sections 8 (c) , 20, 25 and
29 (1) of The Narcotic Drugs and Psychotropic Substances Act,
1985 (for short "N.D.P.S Act"). The applicant has been arraigned as
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an accused and being prosecuted at the instance of Inspector of
Customs, Narcotic Control Bureau, Pune for having found in
possession of 106 k.g of Ganja. There are two accused. Accused -
Rohit Kale has already been released on bail by Co-ordinate Bench
of this Court (Coram: N.R. Borkar, J.) on 21 st March, 2023. The
applicant was arrested on 8th June, 2019 and is in custody for more
than four years.
2. It appears that after a tip-off received by the Narcotic Cell,
Customs, Pune, a car transporting 106 k.m Ganja in a Maruti
Brezza Car to be delivered to a person in Mumbai was intercepted
near Hadapsar between 17.00 hours and 18.00 hours. During
search, the aforesaid contraband was found in the dickey. There
were 49 cello taped packets containing green dried fruiting and
flowering tops and dried leaves purported to be Ganja.
3. At the outset, learned Counsel for the applicant submits that
she would argue her case on three folds. The first fold is parity.
Second is non conscious possession of the contraband qua the
applicant and the third is non compliance of section 52A of the
N.DP.S Act.
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4. Mr. Munde, learned Special P.P while strongly objecting the
Bail Application, submits that it being a commercial quantity of
contraband, bar under section 37 of the NDPS Act would operate,
so also in view of presumption under Section 35 of the said Act, the
applicant shall not be released on bail. Mr. Munde is at pains to
submit that there is non compliance of section 42 of the N.D.P.S
Act. Finally, according to him, it being a commercial quantity, the
trial Court may be directed to expedite hearing of the case so that
the offences with which the applicant and the co-accused have been
charged can be brought to a logical end.
5. Rohit Kale came to be released on bail by the Co-ordinate
Bench of this Court (Coram: N.R. Borkar, J.) on 21 st March, 2023.
This Court noted in the said order that in view of Section 2 (iii) (b)
of the N.D.P.S Act, "Ganja" is defined as the flowering or fruiting
tops of the cannabis plant, excluding the seeds and leaves when not
accompanied by the tops. Prima facie, it appears that the weight of
the leaves was not excluded from the weight of Ganja. It was also
observed that since the applicant was incarcerated without framing
the charge for about four years, he needs to be released on bail and
accordingly, he was released. The learned Special P.P submits that
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the said order has not been challenged further. Obviously, the
present applicant, on the ground of parity would be entitled for bail
as he has also been arrested with the first accused.
6. Learned Counsel for the applicant, in addition to the ground
of parity, invited my attention to the fact that the applicant was not
found in conscious possession of the contraband in the car as the car
does not belong to him and he was sitting as a co-passenger.
Admittedly, the contraband was found in the dickey of the car and
the material placed on record by the prosecution does not reveal as
regards conscious possession of the said contraband qua the
applicant.
7. Admittedly, there is non compliance of Section 52A of the
N.D.P.S Act which mandates that the samples shall be collected
before the Magistrate before sending the said samples to the
Laboratory for testing. The Hon'ble Supreme Court in a recent
pronouncement in case of Simarnjit Singh Vs State of Punjab1 while
considering an earlier judgment in case of Union of India Vs.
Mohanlal2 referred paragraphs 15 to 17 of the said judgment
1 2023 SCC Online SC 906
2 2016 (1) SCC (CRI) 864
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which read thus;
"15. It is manifest from Section 52-A (2)
include (supra) that upon seizure of the
contraband the same has to be forwarded
either to the officer-in-chrage of the nearest
police station or to the officer empowered
under Section 53 who shall prepare an
inventory as stipulated in the said provision
and make an application to the Magistrate for
purposes of (a) certifying the correctness of
the inventory, (b) certifying photographs of
such drugs or substances taken before the
Magistrate as true, and (c) to draw
representative samples in the presence of the
Magistrate and certifying the correctness of
the list of samples so drawn.
16. Sub-section (3) of Section 52-A requires
that the Magistrate shall as soon as may be
allow the application. This implies that no
sonner the seizure is effected and the
contraband forwarded to the officer-in-chrage
of the police station or the officer empowered,
the officer concerned is in law duty-bound to
approach the Magistrate for the purposes
mentioned above including grant of
permission to draw representative samples in
his presence, which samples will then be
enlisted and the correctness of the list of
samples so drawn certified by the Magistrate.
In other words, the process of drawing of
samples has to be in the presence and under
the supervision of the Magistrate and the
entire exercise has to be certified by him to be
correct.
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17. The question of drawing of
samples at the time of seizure which, more
than not, takes place in the absence of the
Magistrate does not in the above scheme of
things arise. This is so especially when
according to Section 52-A (4) of the Act,
samples drawn and certified by the Magistrate
in compliance with subsections (2) and (3) of
Section 52-A above constitute primary
evidence for the purpose of the trial. Suffice it
to say that there is no provision in the Act that
mandates taking of samples at the time of
seizure. That is perhaps why none of the States
claim to be taking samples at the times of
seizure".
8. Apart from the aforesaid facts, it must be noted that the
charge has not yet been framed and there is no likelihood of trial
being concluded in the near future. Right of an accused to have a
speedy trial is a fundamental right in view of Part III of the
Constitution. As such, rigours of Section 37 of the N.D.P.S act
would not come in the way of this Court in exercising the power of
this Court under constitutional provisions.
9. I am afraid, I can not buy the argument of Mr. Munde as
regards bar under section 37 of the N.D.P.S Act in view of the attending
facts and circumstances. Consequently, following order is passed.
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:ORDER:
(a) The application is allowed.
(b) The applicant - Sidharth Baban
Nanavare be released in Customs N.D.P.S C.R.
No.06 of 2019 registered with Narcotic Cell,
Custom, Pune on executing a P.R bond in the sum
of Rs.50,000/- with one or two sureties in the like
amount to the satisfaction of the Special Judge,
N.D.P.S, Pune.
(c) The applicant shall attend the Customs
Office, Pune twice in a month on Monday between
10.00 a.m and 12.00 p.m till the charge is framed
by the Special Court.
(d) The applicant shall surrender his
passport to the Investigating Officer. In case, he
has no passport, an affidavit be sworn before the
Special Court within two weeks from today.
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(e) The applicant shall not leave the
jurisdiction of the Special Court, Pune until
conclusion of the trial.
(f) 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 of any Police Officer. The applicant shall not
tamper with the evidence.
(g) The applicant shall furnish his cell
number as well as residential address to the
Investigating Officer and shall also inform in case
of any change in the Cell number or the residential
address.
(h) Needless to say that breach of any of the
conditions would entitle the prosecution to pray
for cancellation of bail.
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9. The application stands disposed of in the aforesaid terms.
[PRITHVIRAJ K. CHAVAN, J.]
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