Bombay High Court
Shahid Abdul Rauf Shaikh @ Golden vs State Of Maharashtra on 6 May, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:22418
34-BA4272-2023.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 4272 OF 2023
SANTOSH
SUBHASH Shahid Abdul Rauf Shaikh @ Golden ...Applicant
KULKARNI
Digitally signed by
SANTOSH SUBHASH
Versus
KULKARNI
Date: 2024.05.14
17:24:03 +0530
State of Maharashtra ...Respondent
Mr. Ayaz Khan, for the Applicant.
Mr. S. R. Aagarkar, APP for the State/Respondent No.1.
IO PSI Mahesh Nayakwade, D. N. Nagar Police Station,
present.
CORAM: N. J. JAMADAR, J.
DATED: 6th MAY, 2024
ORDER:
-
1. The applicant, who is arraigned in NDPS Special Case
No.1983 of 2023 arising out of CR No.286 of 2023, for an offence
punishable under Section 22(c) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 ("the NDPS Act, 1985"), has
preferred this application to enlarge him on bail.
2. On 2nd May, 2023, while D. N. Nagar Police were on
patrolling duty near Janata Colony, Gaondevi Dongri, Andheri
(W), Mumbai, the applicant was found moving in suspicious
circumstances. The applicant was accosted. Two public
witnesses were called. The applicant was apprised of his right
to be searched before a nearest Magistrate or Gazetted Officer.
The applicant declined to avail the said right. In the personal
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search of the applicant a transparent pouch containing off-white
substance was found in the right pocket of his trouser. It was
Mephedrone (MD). It weighed 104 grams. Contraband article
was seized. The applicant was apprehended.
3. Mr. Khan, the learned Counsel for the applicant,
submitted that the applicant has been falsely roped in. In fact,
the applicant was picked up from his home. No contraband
article was found in possession of the applicant. Reliance was
sought to be placed on the CCTV footages, which were tendered
before the learned Special Judge. It was submitted that since
the prosecution does not allege that the CCTV footages showing
the members of the raiding party, are false and fabricated, the
said material can be taken into consideration.
4. Mr. Khan further submitted that there is non-compliance
of the mandate contained in Section 50 of the NDPS Act, 1985
as the applicant was not apprised that he had a right to be
searched before the nearest Magistrate or Gazetted Officer. The
appraisal was thus stated to be infirm. Moreover, the
authorised officer has not recorded that the applicant declined
to avail the right to be searched before a Magistrate or Gazatted
Officer. Reliance was placed on the decisions of the Supreme
Court in the cases of State of Rajasthan vs. Parmanand and
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another1 and Ranjan Kumar Chadha vs. State of Himachal
Pradesh2.
5. Mr. Ayaz Khan also made an endeavour to assail the
prosecution on the ground that the public witnesses to the
seizure panchnama are the stock panch of the police. Their
very presence at the scene of occurrence to witness the search
is doubtful. An endeavour was made to bank upon the copies of
the panchnamas which show that the panch witnesses in
question, have also acted panch witnesses in other cases.
Lastly, it was submitted that there is an inordinate delay in
conducting the proceedings under Section 52A of the NDPS Act.
The seizure was effected on 3rd May, 2023 and the inventory was
conducted on 22nd May, 2023. And the samples were forwarded
to CA on 25th May, 2023. Thus, the applicant deserves to be
enlarged on bail.
6. Mr. Agarkar, the learned APP, opposed the prayer for bail.
It was submitted that the applicant was found in possession of
commercial quantity of the contraband substance. The
endeavour of the applicant to bank upon the CCTV footages to
show that the applicant was not apprehended at the time and
place, as alleged, cannot be countenanced, at this stage, as that
1 2014 DGLS (SC) 213.
2 2023 SCC Online SC 1262.
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would be a matter for adjudication at the trial. On the aspect of
the alleged non-compliance of the mandate contained in Section
50 of the NDPS Act, Mr. Agarkar submitted that the appraisal
memo (page 40) clearly indicates that the applicant was
apprised of his right under Section 50 of the NDPS Act, 1985
and the latter gave consent to be searched before the police.
7. The applicant was allegedly found in possession of 106
grams of MD. As commercial quantity of contraband was
allegedly found in possession of the applicant, the rigor
contained in Section 37 of the NDPS Act, 1985 is attracted. The
Court is, therefore, enjoined to record a satisfaction that there
are reasonable grounds for believing that the accused is not
guilty of the offences for which he has been arraigned and he is
not likely to commit any offence while on bail.
8. In the case of Union of India vs. Shiv Shanker Kesari 3, the
Supreme Court enunciated that the expression "reasonable
grounds" used in Section 37(1)(b)(ii) means something more
than prima facie grounds. It connotes substantial probable
causes for believing that the accused is not guilty of the offence
charged and this reasonable belief contemplated in turn points
to existence of such facts and circumstances as are sufficient in
3 (2007) 7 Supreme Court Cases 798.
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themselves to justify recording of satisfaction that the accused
is not guilty of an offence charged.
9. On the aforesaid touchstone, reverting to the facts of the
case, the substantial ground, which Mr. Khan made an
endeavour to lay emphasis on, was the alleged non-compliance
of the mandate contained in Section 50 of the NDPS Act, 1985.
Taking the Court through the FIR, seizure panchnama as well
as the appraisal memo (page 40) it was submitted that, what the
applicant was allegedly apprised of was that he had a right to be
searched by and not before a nearest Magistrate or Gazetted
Officer. Mr. Khan strenuously submitted that the provisions
contained in Section 50 of the NDPS Act, 1985 warrant that, if
the suspect so requires, the authorised officer shall take such
person without unnecessary delay to the nearest Magistrate or
Gazetted Officer for search before such Magistrate or Gazetted
Officer. Even if the search was to be conducted before the
Magistrate or Gazetted Officer, the search is required to be
conducted by the authorised officer and not by the Magistrate or
Gazetted Officer. Therefore, the apprisal, in the instant case,
that the applicant could have the search by the Magistrate or
Gazetted Officer was not in consonance with the said vested
right, submitted Mr. Khan.
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10. In the case of Parmanand (supra) the Supreme Court
enunciated that the accused must be informed that under
Section 50(1) of the NDPS Act, 1985, he has a right to be
searched before a nearest Gazetted Officer or before a nearest
Magistrate. In Ranjan Kumar Chadha (supra), after a review of
the precedents, the Supreme Court culled out inter alia the
following requirements envisaged by Section 50 of the NDPS Act,
1985.
"66. .............
(ii) Where, the person to be searched declines to exercise this
right, the police officer shall be free to proceed with the search.
However, if the suspect declines to exercise his right of being
searched before a Gazetted Officer or Magistrate, the empowered
officer should take it in writing from the suspect that he would
not like to exercise his right of being searched before a Gazetted
Officer or Magistrate and he may be searched by the empowered
officer.
................
(iv) While informing the right, only two options of either being
searched in presence of a Gazetted Officer or Magistrate must
be given, who also must be independent and in no way
connected to the raiding party.
(v) In case of multiple persons to be searched, each of them has
to be individually communicated of their right, and each must
exercise or waive the same in their own capacity. Any joint or
common communication of this right would be in violation of
Section 50.
............."
11. Indubitably, in the aforesaid pronouncements and a host
of judgments, it has been enunciated that the suspect must be
apprised of his right to be searched before nearest Magistrate or
Gazetted Officer. However, the substance of the matter cannot
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be lost sight of. The thrust of the submission, in the case at
hand, was that, the applicant was informed that he had a right
to be searched by a nearest Magistrate or Gazetted Officer and
not before a nearest Magistrate or Gazetted Officer. The pivotal
question is, whether the applicant was apprised of his right
envisaged by Section 50 of the NDPS Act, 1985?
12. In the case of State of Punjab vs. Baldev Singh4, the
Constitution Bench expounded that there is, thus, unanimity of
judicial pronouncements to the effect that it is an obligation of
the empowered officer and his duty before conducting the
search of the person of a suspect, on the basis of prior
information, to inform the suspect that he has the right to
require his search being conducted in the presence of a Gazetted
Officer or a Magistrate and that the failure to so inform the
suspect of his right, would render the search illegal because the
suspect would not be able to avail of the protection which is
inbuilt in Section 50. It is, however, not necessary to give the
information to the person to be searched about his right in
writing. It is sufficient if such information is communicated to
the person concerned orally and as far as possible in the
presence of some independent and respectable persons
witnessing the arrest and search. The prosecution must,
4 (1996) 6 Supreme Court Cases 172.
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however, at the trial, establish that the empowered officer had
conveyed the information to the person concerned of his right of
being searched in presence of a Magistrate or a Gazetted Officer,
at the time of the intended search.
13. If the aforesaid enunciation of law is kept in view, the
submission sought to be canvassed by Mr. Khan, though
attractive at the first blush, does not merit countenance. There
is material to indicate that the applicant was indeed apprised of
his right under Section 50 of the NDPS Act, 1985 and the
applicant chose to be searched by the police. It does not appear
that the use of the word 'by', for the word 'before', (as was
sought to be canvassed on behalf of the applicant), resulted in
any prejudice to the applicant. Prima facie the applicant was
apprised of his right to be searched in the presence of a
Magistrate or Gazetted Officer. I am, therefore, not persuaded to
agree with the submissions of Mr. Khan that there is a non-
compliance of the mandate contained in Section 50 of the NDPS
Act.
14. The ground that the search stood vitiated as it was
witnessed by the panch witnesses, who happened to be
witnesses in other cases of search and seizure also, is required
to be stated to be repelled. The aspect of the value to be
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attached to the evidence of the panch witnesses would be a
matter for adjudication at the trial. Ex facie, the fact that both
the panch witnesses had acted as panch witnesses in other
crimes does not necessarily render their evidence totally bereft
of any evidentiary value. Nor the said ground constitutes a
substantial probable cause to hold that the applicant/accused
may not be guilty of the offence, for which he has been
arraigned.
15. The third contention of Mr. Khan that no search, as
alleged, took place was sought to be premised on the CCTV
footages purportedly tendered before the learned Special Judge
vide application (Exhibit-C) dated 16th June, 2023. Mr. Khan
would urge that it is not the law that such evidence, even if of
sterling quality, cannot be considered at the stage of bail.
Reliance was placed on the decision of the Supreme Court in
the case of Sarija Banu (A) Janarthani alias Janani and another
vs. State through Inspector of Police5, wherein the Supreme
Court took note of dispatch of a telegram to the authorities to
the effect that the police party had entered into the house of the
appellants and took them away and their whereabouts were not
known. Reliance was also placed on a Division Bench judgment
in the case of Nazir Maqsud Shaikh vs. The State of
5 2004(12) SCC 266.
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Maharashtra6 and the orders of a learned Single Judge of this
Court in the cases of Vidyaprasad Ramsevak Tiwari vs. The
State of Maharashtra7 and Ramshiromani A. Pandey vs. The
State of Maharashtra8, wherein the Court considered the CCTV
footages at the stage of grant of bail.
16. I have perused the material on record and the judgments
sought to be pressed into service by Mr. Khan in support of his
submissions. What the applicant is essentially driving at is, to
persuade the Court to evaluate the material, in the form of
defence evidence, to discard the case of search and seizure. At
this stage, I am afraid, such a course is legally impermissible.
The reliability and veracity of the material, sought to be relied
upon by the applicant, would be a matter for adjudication at the
trial. The cases in which such material was considered by the
Courts turned on their peculiar facts.
17. In the instant case, the applicant is offering a version
which may, if proved, improbablise the prosecution version.
However, for that purpose, the said fact would be required to be
established by either leading evidence or eliciting admissions
during the course of cross-examination of prosecution
6 BA/1459/2021, dtd.14/10/2022.
7 BA/1575/2014, dtd.1/8/2014.
8 BA/1006/2014, dtd.31/7/2014.
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witnesses. The course suggested by the applicant is fraught with
the risk of converting a proceedings for bail into a mini-trial on
facts. I, therefore, decline the invitation to delve into the aspect
of evaluation of the material, in the form of defence evidence, to
adjudge the entitlement for bail.
18. The ground of delay in the inventory proceedings before
the learned Magistrate under Section 52A also does not carry
much conviction. The inventory was carried out under 20 days
of the seizure. In the facts of the case, interval of time does not
appear to be such as to erode the sanctity of the proceedings
under Section 52A of the NDPS Act, 1985.
19. The conspectus of the aforesaid consideration is that the
applicant could not demonstrate that there is a substantial
probable cause to believe that the applicant may not be guilty of
the offence for which he has been charged. The interdict
contained in Section 37 of the NDPS Act, 1985 operates with full
force. The applicant, therefore, does not deserve to be enlarged
on bail.
20. Hence, the following order:
:ORDER:
(i) Application stands rejected.
(ii) By way of abundant caution, it is clarified that the
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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.
[N. J. JAMADAR, J.]
