Bombay High Court
Abid Haniff Qureshi vs State Of Maharashtra on 6 May, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:22200ARUNA
SANDEEP
TALWALKAR
Digitally signed by 43.BA.2981.2023.doc
ARUNA SANDEEP
TALWALKAR
Date: 2024.05.11
01:05:24 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 2981 OF 2023
Abid Haniff Qureshi. ...Applicant
vs.
The State of Maharashtra ...Respondent
Mr. Shreerat Kamath a/w. Ms. Puja Yadav, Advocate for applicant.
Mr. S.R. Agarkar, APP, for the Respondent/State.
IO, API S.R. Padri, Sakinaka/Pantnagar Police Station.
CORAM : N. J. JAMADAR, J.
DATE : MAY 6, 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 C.R. No. 4 of 2021
registered with Sakinaka Police Station for the offences punishable
under sections 8(c), 20(b) II(c) and 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985("NDPS Act") seeks to be enlarged
on bail.
3. On 14th January, 2021, while the police were on patrolling
duty, an intimation was received that Ganja was stored in Room No.
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103, Shri Samarth Building, Sangharsh Nagar SRA, Chandivali,
Mumbai. A raid was conducted. 10 gunny bags containing ganja
were seized therefrom. Co-accused Ashok Manik Mhetre who was in
occupation of the said room came to be arrested. Mohd. Dilshad
Mohd. Ayub Shaikh, another co-accused who had transported the
contraband articles to the said room was also apprehended.
4. During the course of investigation, it transpired that the
applicant was one of the 3 persons who were seen in the CCTV
footage unloading the contraband articles in room No. 103. The
applicant came to be arrested. During the course of interrogation on
21/1/2021 the applicant made a disclosure statement to point out the
place where he had kept the contraband articles procured from
Accused No.1-Ashok Manik Mhetre. The applicant led the police
party to a room, opened the said room and pointed out gunny bags
kept on the mezzanine floor. The said gunny bags contained 20 kg.
156 grams ganja. It was seized. The samples (C1 and C2) were
collected.
5. The learned Counsel for the applicant submitted that the
contraband article was allegedly found in possession of the applicant
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on 21st January, 2021. However, inventory was conducted before the
learned Magistrate on 13 th October, 2021. The said inventory is also
of no assistance to the prosecution as there is no material to show
that the articles which were allegedly recovered from the possession
of the applicant were produced before the learned Magistrate. The
inventory panchanama does not refer to the bulk that was allegedly
recovered from the possession of the applicant. It was further
submitted that the samples were already forwarded to CA on 10 th
February 2021 and the prosecution case rests on the CA report which
is based on the analysis of the samples collected at the time of the
alleged incident. Therefore, there is non compliance of mandate
contained in section 52A of the NDPS Act.
6. The learned APP resisted the prayer for bail. It was submitted
that there is compliance of the provisions contained in section 52A of
the NDPS Act, though belatedly. Since a commercial quantity was
found in possession of the applicant, the interdict contained in
Section 37 of the NDPS Act comes into play and the applicant does
not deserve to be released on bail.
7. I have perused the report under section 173 of the Code and
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the documents annexed with it. The applicant came to be
apprehended on the basis of the statement of the co-accused. It
further appears that the complicity of the applicant is sought to be
established on the basis of the CCTV footage and the transcript of
the conversation between the applicant and the co-accused.
Evidently, the contraband was recovered pursuant to the disclosure
allegedly made by the applicant.
8. From the perusal of the seizure memo(page 63) it becomes
evident that 20.156 kg. ganja was allegedly seized from the
possession of the applicant. The quantity seized is marginally in
excess of the commercial quantity of ganja.
9. The aspect of non-compliance of the mandate contained in
section 52A of the NDPS Act is required to be appreciated in light of
the delay in conducting the inventory and the identity of the
substance which was allegedly recovered from the possession of the
applicant and the one in respect of which proceedings under section
52A of the NDPS Act were conducted before the learned Magistrate.
In the seizure memo, the bulk was marked "C".
10. The seizure memo does not give any indication as to whether
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the contraband was in a loose state or concealed in packets. It is
necessary to note that in the inventory panchanama, there is no
reference to the bulk (C) allegedly recovered from the applicant. In
these circumstances, prima facie, there is no material to connect the
contraband substance which was recovered from the possession of the
applicant and the contraband substance in respect of which the
proceedings under section 52A of the NDPS Act were conducted.
11. Secondly, the forwarding letter (page-99) indicates that the
sample of the substance recovered from the applicant (C-1 and C-2)
were forwarded to CA on 10th February 2021. The CA report dated
15th November, 2021 indicates that the analysis was based on the
samples received on 10th February, 2021. Indisputedly the CA
report is based on the analysis of the samples collected at the time
of seizure. Conversely, the inventory panchanama does not reveal
that samples were collected before the Magistrate and thereafter
samples were forwarded to the analysis.
12. In the aforesaid context, Mr. Kamath placed a strong reliance
on three recent Supreme Court judgments and orders which
emphasise that the compliance of the provisions contained in Section
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52A is mandatory. In the case of Yusuf @ Asif vs. State1, the
Supreme Court after adverting to the provisions of Section 52A of the
NDPS Act, 1985 and its earlier decision in the case of Union of India
vs. Mohanlal and Anr.2 enunciated the law, inter alia, as under:
"12. A simple reading of the aforesaid provisions, as also
stated earlier, reveals that when any contraband/narcotic
substance is seized and forwarded to the police or to the
officer so mentioned under Section 53, the officer so
referred to in sub section (1) shall prepare its inventory
with details and the description of the seized substance like
quality, quantity,mode of packing, numbering and
identifying marks and then make an application to any
Magistrate for the purposes of certifying its correctness and
for allowing to draw representative samples of such
substances in the presence of the Magistrate and to certify
the correctness of the list of samples so drawn.
13. Notwithstanding the defence set up from the side of
the respondent in the instant case, no evidence has been
brought on record to the effect that the procedure
prescribed under sub-sections (2), (3) and (4) of Section
52A of the NDPS Act was followed while making the
seizure and drawing sample such as preparing the inventory
and getting it certified by the Magistrate. No evidence has
also been brought on record that the samples were drawn
in the presence of the Magistrate and the list of the
samples so drawn were certified by the Magistrate. The
mere fact that the samples were drawn in the presence of a
gazetted officer is not sufficient compliance of the mandate
of subsection (2) of Section 52A of the NDPS Act.
........
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
1 Criminal Appeal No.3191/2023.
2 (2016) 3 SCC 379.
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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.
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)
13. In the case of Simarnjit Singh vs. State of Punjab 3, the
Supreme Court again adverted to the decision in the case of
Mohanlal (supra) and considering the facts in the case of Simarnjit
(supra), observed that the act of PW-7 of drawing samples from all
the packets at the time of seizure is not in conformity with the law
laid down by the Supreme Court in the case of Mohanlal (supra).
This creates a serious doubt about the prosecution's case that
substance recovered was a contraband.
14. In the latest pronouncement in the case of Mohammed Khalid
and another vs. The State of Telangana 4, the Supreme Court observed
3 2023 SCC OnLine SC 906.
4 Criminal Appeal No(S).1610/2023, dtd.1/3/2024.
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in emphatic terms 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 is nothing but a waste paper
and cannot be read in evidence.
15. Since Mohanlal (supra) constitutes the edifice of the aforesaid
enunciation, it may be apposite to extract the observations of the
Supreme Court in paragraph 17 of the judgment in the case of
Mohanlal (supra), which read 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 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.
Be that as it may, a conflict between the statutory
provision governing taking of samples and the standing
order issued by the Central Government is evident when
the two are placed in juxtaposition. There is no gainsaid
that such a conflict shall have to be resolved in favour of
the statute on first principles of interpretation but the
continuance of the statutory notification in its present
form is bound to create confusion in the minds of the
authorities concerned instead of helping them in the
discharge of their duties. The Central Government would,
therefore, do well, to re-examine the matter and take
suitable steps in the above direction."
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(emphasis
supplied)
16. The material on record reveals infirmity in the sampling and
proceedings under section 52A of the NDPS Act, 1985. Thus, the
prosecution will have to surmount the challenge of non compliance
of section 52A of the NDPS Act, 1985 in letter and spirit and
therefore, I am inclined to hold that a substantial probable cause is
made out to believe that the accused may not be guilty of the
offences for which he has been arraigned.
17. Learned APP submits that the applicant has antecedents. He
has been arraigned in C.R. No. 6 of 2021 registered with DCB CID
Unit IX.
18. Learned Counsel for the applicant submits that in the said
crime, the applicant has been arraigned on the basis of the statement
of the co-accused. Nothing has been recoveAbyssinica SILred from
the possession of the applicant.
19. I have perused the charge-sheet in C.R. No. 6 of 2021
registered with DCB CID, Unit No. IX. No contraband was found in
the possession of the applicant, therein.
20. In the aforesaid view of the matter I am inclined to exercise
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discretion in favour of the applicant.
21. Hence, the following order.
ORDER
1] The application stands allowed.
2] The applicant Abid Haniff Qureshi be released on bail in
C.R. No. 4 of 2021 registered with Sakinaka Police Station, on
furnishing a P.R. Bond of Rs. 50,00,000/- with one or more
sureties in the like amount.
3] The applicant shall mark his presence at Sakinaka Police
Station on the first Monday of every alternate month between
11 am to 1 pm till conclusion of the trial.
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
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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.
8] Application is disposed of accordingly.
(N. J. JAMADAR, J.)
