Bombay High Court
Akshaybar Ramnath Kushwaha vs State Of Maharashtra on 5 March, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:12230
28-ba-3830-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.3830 OF 2023
Akshaybar Ramnath Kushwaha ...Applicant
vs.
The State of Maharashtra ...Respondent
Mr. Kamlesh Satre i/b. Mr. Vikas Chavan a/w. Mr. Nilesh Bangar, for
the Applicant.
Mr. Bapu Holambe-Patil, for Respondent No.1/State.
CORAM : N. J. JAMADAR, J.
DATE : MARCH 05, 2024
P.C.:
1. Heard the learned counsel for the applicant and the learned
APP for the State.
2. The applicant, who is arraigned in CR No. 18 of 2021
registered with DCB CID, Unit 5, for the offences punishable under
Section 20 (c) read with Section 8(c) of Narcotic Drugs and
Psychotropic Substances Act, 1985 (NDPS Act, 1985), has
preferred this application to enlarge him on bail.
3. On 17th June, 2021 a specific information was received at DCB
CID that a person was to come to MMRDA - Bhandup pedestrian
bridge, to sell Charas. After complying with statutory requirements
the raiding party conducted surveillance at the said place. At about
5.35 pm., the applicant, whose description matched the features
Vishal Parekar ...1
::: Uploaded on - 13/03/2024 ::: Downloaded on - 26/03/2024 19:53:34 :::
28-ba-3830-2023.doc
given by the informant, came near Best Bus Stop of Eastern
Express Highway. He was carrying a black sack. His movements
appeared suspicious. The applicant was thus accosted.
4. The applicant was apprised of his right to be searched in the
presence of a Gazetted Officer or Magistrate. As the applicant
declined to avail the said right, a search of the applicant was
conducted. In the sack which the applicant was carrying five
rectangular slabs were found. One of the slabs was tested by a
testing kit. It turned out to be Charas. Rest four slabs were also
tested. Each of the slabs appeared to be Charas. The contraband
substance weighed 2.5 kg. The contraband articles were seized and
samples were collected. The applicant came be to arrested.
5. Mr. Satre, the learned Counsel for the applicant submitted
that the search and seizure was vitiated as all the contraband
substance were mixed and thereafter the samples were collected.
Collection of samples after mixing the contraband articles denudes
the samples' representative character. Secondly, Mr. Satre would
submit that there is non-compliance of the mandate contained in
Section 52A of the Act, 1985 as the samples were collected at the
time of seizure, not before the Magistrate. Therefore, inventory of
Vishal Parekar ...2
::: Uploaded on - 13/03/2024 ::: Downloaded on - 26/03/2024 19:53:34 :::
28-ba-3830-2023.doc
the articles and the samples before the Magistrate purportedly held
on 2nd February, 2024 is of no assistance to the prosecution. It was
submitted that the said inventory was conducted only after the
applicant raised the said ground for bail. Such belated inventory is
of no significance.
6. In opposition to this, the learned APP submitted that a huge
commercial quantity of Charas was found in the possession of the
applicant. There has been compliance with all the statutory
provisions. Before the search, the applicant was apprised of his
right to be searched before the Gazetted Officer or Magistrate.
Inventory has also been held on 2nd February, 2024. Therefore, it
cannot be said that there is non-compliance of the provisions
contained in section 52A of the Act.
7. On the aspect of mixing of the slabs and thereafter the
collection of the samples, Mr. Satre placed reliance on an order
passed by this Court in the case of Sameer Rais Shaikh vs. State of
Maharashtra1. Reliance was also placed on an order passed by the
Delhi High Court in the case of Amani Fidel Chris vs. Narcotics
Control Bureau2.
1 BA. No.2108/2023 Dt.03/11/2023.
2 Cri. M.A.No. 1660/2020 Dt. 13/03/2020.
Vishal Parekar ...3
::: Uploaded on - 13/03/2024 ::: Downloaded on - 26/03/2024 19:53:34 :::
28-ba-3830-2023.doc
8. In the case of Sameer Shaikh (supra), a learned single Judge
of this Court after adverting to an earlier order in the case of
Parvez Haseen Khan vs. The State of Maharashtra 3 had observed,
inter alia, as under:-
5] Learned counsel for the applicant invited my
attention to the order dated 19.07.2023 passed by this
Court in Parvez Haseen Khan vs. The State of
Maharashtra (through A.N.C. Bandra Unit) in Bail
Application No.3486 of 2021. This Court in paragraph
4 of the order dated 19.07.2023 has observed thus :-
4. The panchanama dated 25/11/2020 records
that the investigating agency had mixed together
the entire contraband contained in all the three
bags and thereafter drawn three samples, one of
which was forwarded to CFSL for analysis. The
learned Single Judge of Delhi High Court in
Amani Fidel Chris (supra) has held that "Mixing
of the contents of container/package (in one lot)
and then drawing the representative samples is
not permissible under the Standing Orders and
rightly so since such a sample would cease to be
a representative sample of the corresponding
container/package." It is stated that decision in
Amani Fidel Chris (supra) was challenged by
NCB before the Apex Court and that the Special
Leave Petition has been dismissed by the Hon'ble
Supreme Court. Similar view is taken by this
Court in Ibrahim Khwaja Miya Sayyed and
Hari Mahadu Valse (supra) and by Telangana
High Court in Baba Sow Chandekar (supra)."
6] In my opinion the applicant is also entitled to the
benefit of the said observations in the facts and
circumstances of the present case. Furthermore the
applicant was arrested on 26.01.2021 and is now in
custody for more than two years and nine months.
Even the charge has not been framed. The trial is
likely to take a long time to conclude.
9. In the case of Venktesh Shiva Permal vs. The State of
3 BA.No. 3486/2021 Dt.19/07/2023
Vishal Parekar ...4
::: Uploaded on - 13/03/2024 ::: Downloaded on - 26/03/2024 19:53:34 :::
28-ba-3830-2023.doc
Maharashtra4, I had an occasion to elaborately consider the ground
of mixing of the contents of all the packages and the collection of
the samples thereafter, in the light of the judgments of the Supreme
Court in the cases of Union of India vs. Bal Mukund and Others 5;
Sumit Tomar vs. State of Punjab6 and Standing Instruction No.1/88
and Standing Order No. 1/89. It was, inter alia, observed as under:-
34. As noted above, sub-clause (b) and (e) of the
Standing Instructions 1/88 and sub-clauses 2.5 and
2.8 of the Standing Order 1/89 envisage bunching of
packets / containers in lots and thereafter, drawing of
representative sample from each packet / container of
that lot and mixing together to make a composite
whole from which the samples are drawn for that lot.
However, the principal condition is that the officer
effecting the seizure must find that the
packets/containers seized together are of identical
size and weight bearing identical marking and
contents of each packet give identical results on
colour test by drug identification kit, and, thus,
conclusively indicate that the packages are identical
in all respects.
35. Evidently, the underlying object of the
Instructions is to ensure that the sample which is
collected represents the bulk, unmistakably.
Invariably, in pursuance of the provisions of the Act,
and the Drug Disposal Rules, the bulk is disposed.
When a person is sought to be fastened with liability
for possessing a particular quantity of contraband, in
bulk, on the basis of the sample collected, the Court
ought to have the assurance that the sample so
collected represented the entire bulk. The insistence
on collecting samples from each of the packets and
containers stems froms this objective.
36. In a situation of present nature, where the
seizure panchanama does not indicate that the
packets were identical and the contents were also
identical and the officer effecting search had satisfied
4 BA No. 3784 of 2023 Dt.23/01/2024.
5 Cri. Appeal No. 1397 of 2007 Dt. 31/03/2009.
6 (2013) 1 SCC 395.
Vishal Parekar ...5
::: Uploaded on - 13/03/2024 ::: Downloaded on - 26/03/2024 19:53:34 :::
28-ba-3830-2023.doc
himself that the packets were identical in all respects,
the mixing of the contents and thereafter collecting
the samples from the said mixture, without anything
more, erodes the sanctity of the samples so collected
as representative samples of the bulk.
10. In the case at hand, the seizure panchanama records that all
five slabs allegedly containing Charas were mixed together and
weighed. Indeed the seizure panchanama records that the seized
contraband appeared to be similar. It further records that the
authorized officer had scraped the slabs and collected the samples
of each of the five slabs and thereafter two samples weighing 25
gms each were collected.
11. Evidently, the samples so collected were mixed together. It
does not appear to be the prosecution case that the samples of each
of the slabs were separately collected. Therefore, the submission on
behalf of the applicant that the samples so collected do not
represent the bulk recovered from the applicant, cannot be brushed
aside lightly. The question whether the samples so collected would
cease to be the representative sample of all five slabs allegedly
recovered from the applicant would be in the realm of controversy.
12. The second ground of non-compliance of the provisions
contained in section 52A of the NDPS Act, 1985 stands on an even
Vishal Parekar ...6
::: Uploaded on - 13/03/2024 ::: Downloaded on - 26/03/2024 19:53:34 :::
28-ba-3830-2023.doc
better foundation. As submitted by the learned APP, the inventory
was held on 2nd February, 2024. It implies that the prosecution of
the applicant hinges upon the report of the chemical analyst, qua
the samples which were collected at the time of alleged seizure and
forwarded to the chemical analyst. The report of C.A. dated 20 th
September, 2021 indicates that the sample which was collected at
the time of seizure was forwarded to C.A vide letter dated 18 th June,
2021 and the said sample marked (Exh-A1) was analyzed by C.A.
13. It would be contextually relevant to note that the learned
Magistrate while issuing certificate under section 52A(3) of the
NDPS Act, 1985 has categorically recorded that it appears that the
investigating officer had already drawn a sample and forwarded the
same to C.A. and out of the remaining contraband article, the
investigating officer proposed to draw one reserve sample under the
said inventory. Thus, the inventory of remaining contraband article
was prepared in the presence of the learned Magistrate.
14. In the case of Union of India vs. Mohanlal and Another 7 the
Supreme Court, inter alia, observed as under:-
17] The question of drawing of samples at the time of
seizure which, more often than not, takes place in the
absence of the Magistrate does not in the above
7 (2016) 3 Supreme Court Cases 379.
Vishal Parekar ...7
::: Uploaded on - 13/03/2024 ::: Downloaded on - 26/03/2024 19:53:34 :::
28-ba-3830-2023.doc
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 sub-section (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 time of seizure.
15. Following the aforesaid pronouncement, in the recent
decisions, the Supreme Court has emphasized that the compliance
of the provision contained in section 52A is mandatory and the C.A
report in respect of the samples drawn otherwise than before the
Magistrate as mandated by section 52A may not command
probative value.
16. In the case of Yusuf @ Asif vs. State8 following the aforesaid
judgment in the case of Mohanlal (supra) the Supreme Court held
as under:-
15] In Mohanlal's case, the apex court while dealing
with Section 52A of the NDPS Act clearly laid down
that it is manifest from the said provision that upon
seizure of the contraband, it has to be forwarded
either to the officer-in-charge of the nearest police
station or to the officer empowered under Section 53
who is obliged to prepare an inventory of the seized
contraband and then to make an application to the
Magistrate for the purposes of getting its correctness
certified. It has been further laid down that the
samples drawn in the presence of the Magistrate and
the list thereof on being certified alone would
constitute primary evidence for the purposes of the
trial.
8 Cri. Appeal No. 3191 of 2023 Dt.13/10/2023.
Vishal Parekar ...8
::: Uploaded on - 13/03/2024 ::: Downloaded on - 26/03/2024 19:53:34 :::
28-ba-3830-2023.doc
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.
17. In the latest judgment dated 1 st March, 2024 in the case of
Mohammed Khalid and Anr. vs. The State of Telangana 9 the
Supreme Court observed that since no proceedings under section
52A of the NDPS Act, 1985 were undertaken by the Investigating
Officer for preparing an inventory and obtaining samples in
presence of the jurisdictional Magistrate, the FSL report was
nothing but a waste paper and cannot be read in evidence.
18. Evidently, in the case at hand, the provisions contained in
section 52A were not complied with immediately after the seizure
of the contraband articles. The endeavour of the prosecution to
have an inventory of the contraband substance allegedly recovered
from the applicant after more than two and half years of the seizure
of the contraband substance does not salvage the position.
19. The submission of Mr. Satre that the prosecution would be
9 Cri.Appeal No, 1610/2023 Dt.01/03/2024.
Vishal Parekar ...9
::: Uploaded on - 13/03/2024 ::: Downloaded on - 26/03/2024 19:53:34 :::
28-ba-3830-2023.doc
required to bank upon C.A report, issued by the C.A on the basis of
analysis of the samples which were allegedly collected on 17th June,
2021 appears to carry conviction. In any event, the applicant has
been in custody since 17 th June, 2021. A period of 2 years and 8
months has elapsed. The trial will take considerable time. The Court
is informed that the applicant has no antecedents. In the light of the
aforesaid grounds and in the facts of the case, in my view, the
interdict contained in section 37(1)(b)(ii) does not constitute an
impediment in releasing the applicable on bail.
20. I am, therefore, inclined to exercise the discretion in favour of
the applicant.
Hence, the following order.
ORDER
1] The application stands allowed.
2] The applicant Akshaybar Ramnath Kushwaha be released
on bail in C.R. No.18 of 2021 registered with DCB CID, Unit 5,
on furnishing a P.R. Bond of Rs. 1,00,000/- with one or more
sureties in the like amount.
3] The applicant shall mark his presence at DCB CID, Unit 5
on the first Monday of every month in between 11 am to 1 pm
for a period of three years or till conclusion of the trial
Vishal Parekar ...10
28-ba-3830-2023.doc
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] 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.)
Vishal Parekar ...11
