Bombay High Court
Abdul Sattar Mohammed Iqbal Ansari vs State Of Maharashtra on 5 March, 2024
Author: N.J.Jamadar
Bench: N.J.Jamadar
2024:BHC-AS:11247
10 ba 2869 of 2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.2869 OF 2023
Abdul Sattar Mohammed Iqbal Ansari ... Applicant
versus
State of Maharashtra ... Respondent
Mr. M.B.Shirsat with Fehmida Ahmed, Mr. Deepak Thakur, for Applicant.
Mr. S.R.Aagarkar, APP for State.
PSI V.T.Pawar, Nizampura Police Station, Bhiwandi, present.
CORAM: N.J.JAMADAR, J.
DATE : 5 MARCH 2024
P.C.
1. Heard the learned Counsel for the parties.
2. The applicant who is arraigned in C.R.No.71 of 2023 for the offences
punishable under Sections 328, 273, 276 read with Section 34 of the Indian Penal
Code, Sections 18(A), 18(a)(VI), 18(C), 27(b)(ii) and 27(d) of Drugs and Cosmetics
Act and Sections 8(c), 22(b) and 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985, has preferred this application to enlarge him on bail.
3. On 23 February 2023, Nilkanth S. Khadke, attached to the Nizampura
Police Station, received a confidential information that two persons were to arrive at
Talavali Naka, Bhiwandi, to sell cough syrups containing narcotic substances.
Bhiwandi police conducted a surveillance. At about 4.00 p.m., the applicant and co-
accused Sandeep Kanojia came thereat carrying two plastic bags. As their movements
SSP 1/9
10 ba 2869 of 2023.doc
appeared suspicious, they were accosted. In the search, 450 bottles of cough syrups
Codirem (PX Chlorpheniramine Maleate and Codeine Phosphate Syrup) were found
in possession of the applicant and the co-accused. They had no licence to possess
those bottles of cough syrup. Incriminating articles were seized and samples were
collected. The applicant and co-accused were arrested.
4. Mr. Shirsat, learned Counsel for the Applicant, submitted that the
search and seizure of the alleged incriminating articles is vitiated on account of non-
compliance of the mandatory provisions contained in Sections 42 and 50 of the Act. It
is the stated case of the prosecution that the raid was conducted pursuant to an
information received by the first informant Mr. Khadke. However, there is no material
to indicate that the said information was reduced in writing and its copy forwarded to
the immediate official superior. Secondly, the search was conducted even before the
applicant and the co-accused were apprised of their right to be searched in the
presence of gazetted officer or Magistrate under Section 50 of the Act. Therefore, the
search stood vitiated on account of non-compliance of mandate contained in Section
50 of the Act.
5. Learned APP countered the submissions on behalf of the Applicant. He
submitted that, in the facts of the case, Section 50 of the Act was not required to be
complied with as the contraband articles were not found on the person of the applicant
but in the bags which the applicant and the co-accused were carrying. After finding
SSP 2/9
10 ba 2869 of 2023.doc
the contraband articles in the bag which the applicant was carrying, the personal
search of the applicant was conducted. Thus, there is no substance in the contention
that the search stood vitiated on account of the non-compliance of Section 50 of the
Act.
6. Mr. Aagarkar further submitted that PSI Marne had made an entry in the
station diary, being G.D.No.24 dated 23 February 2023, which constitutes sufficient
compliance of the provisions contained in Section 42 of the Act.
7. Prima facie, the material on record indicates that the information was
received by Mr. Khadke. There is no material to indicate that the person who received
the information had recorded the same into writing and forwarded its copy to the
immediate official superior. The station diary entry G.D.No.24 dated 23 February
2023 gives an impression that the information was received by Mr Marne, which was
not the case. Nor the station diary entry records the fact that Mr. Khadke had
apprised PSI Marne about the said information having been received.
8. In the case of Sarija Banu (A) Janarthani @ Janani and Anr. V/s.
State through Inspector of Police1 the Supreme Court inter alia observed that the
compliance of Section 42 was mandatory and that was a relevant fact which should
have engaged attention of the Court while considering the bail application.
9. In the case at hand, apart from G.D.No.24, there does not appear any
1 (2004) 1 SCC 266
SSP 3/9
10 ba 2869 of 2023.doc
other material to substantiate the claim that the provisions contained in
Section 42 of the Act, were complied with.
10. This leads me to the ground of non-compliance of Section 50 of the Act.
FIR as well as the seizure panchanama indicate that when the applicant and co-
accused were accosted, the members of the raiding party inquired with the applicant
about the contents of the bags they were carrying. It is further recorded that the
police constable Shaikh opened the bags which the applicant and the co-accused were
carrying in the presence of police staff and panch witnesses. The bags contained
Codirem cough syrup. After such search operation, it seems, the steps were taken to
apprise the applicant and the co-accused of their right to be searched in the presence
of a Gazetted Officer or Magistrate. The said fact is borne out by the allegations in the
FIR, narration in the seizure panchanama and the contents of the apprisal memo
under Section 50 of the Act.
11. Mr. Shirsat urged that since the authorized officer professed to search
both the person as well as the articles allegedly carried by the applicant and the co-
accused, compliance of Section 50 was indispensable. Reliance was placed on the
judgment in the case of Dilip V/s. State of M.P.2 wherein the Supreme Court
enunciated as under :
"16. In this case, the provisions of Section 50 might not have been
required to be complied with so far as the search of scooter is concerned,
2 (2007) 1 SCC 450
SSP 4/9
10 ba 2869 of 2023.doc
but, keeping in view the fact that the person of the appellants was also
searched, it was obligatory on the part of PW 10 to comply wit the said
provisions. It was not done."
12. Mr. Shirsat also invited attention of the Court to an order dated 24
January 2024 passed by this Court in Jahid Mohd. Hanif Shaikh V/s. State of
Maharashtra3. In the said order, after adverting to the aforesaid judgment in the case
of Dilip and Anr. V/s. State of M.P. (supra), and State of Rajasthan V/s.
Parmanand and Anr.4 I had observed that when the container and/or vehicle is
searched along with the person, compliance of Section 50 of the Act, is necessary. In
such a situation, merely because, no contraband article was found on the person of the
accused and the contraband was found in the container and/or vehicle, does not imply
that Section 50 of the Act need not to be complied with.
13. I must confess that when the aforesaid observations were made, I had
not had the benefit of the three Judge Bench decision of the Supreme Court in the
case of State of Punjab V/s. Baljinder Singh and Anr.5. In the said case, a three
Judge Bench of the Supreme Court declared that the decision of the Supreme Court in
the case of Dilip and Anr. V/s. State of M.P. (supra), is not correct and opposed to
the law laid down by the Supreme Court in State of Punjab V/s. Baldev Singh6 and
other judgments. The observations of the Supreme Court in paragraphs 17 and 18
3 BA 2603 of 2023
4 (2014) 5 SCC 345
5 (2019) 10 SCC 473
6 (1999) 6 SCC 172
SSP 5/9
10 ba 2869 of 2023.doc
read as under :
"17. In the instant case, the personal search of the accused did not
result in recovery of any contraband. Even if there was any such recovery,
the same could not be relied upon for want of compliance of the
requirements of Section 50 of the Act. But the search of the vehicle and
recovery of concerned pursuant thereto having stood proved, merely
because there was non-compliance of Section 50 of the Act, as far as
"personal search" was concerned, no benefit can be extended so as to
invalidate the effect of recovery from the search of the vehicle. Any such
idea would be directly in the teeth of conclusion (3) as aforesaid.
18. The decision of this Court in Dilip case, however, has not adverted to
the distinction as discussed hereinabove and proceeded to confer advantage
upon the accused even in respect of recovery from the vehicle, on the
ground that the requirements of Section 50 relating to personal search were
not complied with. In our view, the decision of this Court in the said
judgment in Dilip Case, is not correct and is opposed to the law laid down
by this Court in Baldev Singh and other judgments."
14. In view of the aforesaid three Judge Bench decision of the Supreme
Court which has overruled the decision in the case of Dilip and Anr. V/s. State of
M.P. (supra), the observations made by me in the case of Jahid Mohd. Hanif Shaikh
V/s. State of Maharashtra (supra), were per incurim. Thus, I find it difficult to
accede to the submission of Mr. Shirsat that in the facts of the case, there was breach
of the provisions contained in Section 50 of the Act.
15. Mr. Shirsat further urged that there is a complete non-compliance of the
provisions contained in Section 52-A of the Act. The submission appears to be
SSP 6/9
10 ba 2869 of 2023.doc
factually impeccable.
16. Learned APP invited the attention of the Court to the Memo forwarded
to the jurisdictional Magistrate upon the seizure of the property (page 81). The said
memo is of no assistance to the prosecution to show the compliance of the mandate
contained in Section 52-A of the Act.
17. In the case of Yusuf @ Asif V/s. State7 in the backdrop of the
submission that the seizure and sampling of the alleged contraband article was in
violation of the mandatory provisions contained in Section 52-A(2), after examining
the provisions contained in Section 52-A of the Act and the decision in the case of
Union of India V/s. Mohanlal and Anr.8 the Supreme Court, inter alia, observed as
under :
"16. In the absence of any material on record to establish that the
samples of the seized contraband were drawn in the presence of the
Magistrate and that the inventory of the seized contraband was duly certified
by the Magistrate, it is apparent that the said seized contraband and the
samples drawn therefrom would not be a valid piece of primary evidence in
the trial. Once there is no primary evidence available, the trial as a whole
stands vitiated." (emphasis supplied)
18. Prima facie, there is non-compliance of Section 52-A of the Act, 1985.
In the circumstances of the case, whether for want of primary evidence, the trial may
stand vitiated and there is also non-compliance of the provisions contained in Section
7 Criminal Appeal No.3191 of 2023 arising out of SLP(Cri.) No.3010 of 2023
8 (2016) 3 SCC 379
SSP 7/9
10 ba 2869 of 2023.doc
42, which has been held by the Supreme Court as a relevant consideration in the case
of Sarija Banu (supra), the Court would be justified in drawing an inference that
there are grounds to believe that the applicant may not be guilty of the offences. The
court is not informed that the applicant has antecedents. Thus, the Court may also
draw an inference that the applicant may not indulge in identical offences if released
on bail. The twin conditions, thus, can be said to have been satisfied.
19. The applicant has been in custody for almost a year. The trial may also
take some time. Thus, I am inclined to release the applicant on bail.
20. Hence, the following order :
ORDER
(i) The Application stands allowed.
(ii) The Applicant - Abdul Sattar Mohammed Iqbal Ansari be released on
bail in C.R.No.71 of 2023 registered with Nimzapura Police Station on furnishing a PR
bond in the sum of Rs.30,000/- and one or two sureties in the like amount to the
satisfaction of the trial Court.
(iii) The applicant shall mark his presence at Nizampura Police Station on
first Monday of every alternate month between 11 am to 1 pm for a period of three
years or till the 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
10 ba 2869 of 2023.doc
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
there is any change.
(vi) The applicant shall regularly attend the proceedings before the
jurisdictional Court.
(vii) The applicant shall not indulge in identical activities for which he has
been arraigned in this case.
(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 co-accused, and the trial Court shall not be influenced by any of
the observations made hereinabove.
Application disposed.
( N.J.JAMADAR, J. )
Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 07/03/2024 20:06:04
