Bombay High Court
Jasinski Andrzej Wieslaw vs Union Of India And Anr on 7 May, 2024
Author: N.J.Jamadar
Bench: N.J.Jamadar
2024:BHC-AS:21228
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.4133 OF 2023
Jasinski Andrzej Wieslaw ... Applicant
versus
Union of India and Anr. ... Respondents
Mr. Aseem Naphade i/by Mr. Prem Kumar R. Pandey with Mr. Pawan Kumar Pandey,
Ms. Sneha Mishra, Ms. Kajal Mishra, for Applicant.
Mr. Amit Munde, Special PP with Mr. Jai Vohra, for Respondent No.1.
CORAM: N.J.JAMADAR, J.
RESERVED ON : 10 APRIL 2024
PRONOUNCED ON : 7 MAY 2024
P.C.
1. The Applicant, who is arraigned in Special Case No.636 of 2023 arising
out of R.C. 220 2022 E 0014 registered with CBI, EOW-V/EO-II, New Delhi, for the
offences punishable under Section 120B of the Indian Penal Code and Section 21 of
the Narcotic Drugs and Psychotropic Substances Act, 1985, has preferred this
application to enlarge him on bail.
2. On 5 November 2022, an information in the form of Interpol Reference
regarding the possible involvement of the applicant, a Polish citizen in drug trafficking,
was received. It was informed that the applicant was to depart on 6 November 2022
from Victoria Falls Airport, Zimbabwe by Flight No.ET829 and will transit to Addis
Ababa (Ethiopia) and will arrive on 7 November 2022 at 7.15 hrs. at Chhatrapati
Shivaji International Airport, Mumbai via Flight No.ET610. The applicant was hiding
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narcotic substance in his baggage (hand baggage). A surveillance was mounted under
the leadership of Yashwant, Inspector. Few Air Intelligence Unit (AIU) officials were
associated with the CBI Team. Two independent panch witnesses were also
summoned.
3. At about 7.30 a.m., on 7 November 2022, the applicant whose features
matched the description came out from the immigration area with a black hand bag
and brown trolley bag. The applicant was also carrying a pink colour trolley suitcase as
check in luggage The applicant collected the said check in baggage from Belt No.9.
The applicant was accosted.
4. After apprising the applicant of his right to be searched before the
nearest Magistrate or Gazetted Officer under Section 50 of the Act, a search was
carried out in the presence of independent panch witnesses. Nothing incriminating
was found in the black hand bag and brown trolley bag. However, when the pink
trolley suitcase was checked through scanner, some material in flat shape was visible in
both the inner sides of the suitcase. The said suitcase was opened in the presence of
independent witnesses in the Chamber of D.C.Custom. Upper side of the suitcase
contained one polythene packet covered by brown paper. The substance appeared to
be Heroin. It weighed 2070 gms. It was marked 'A'. Two similar polythene packets
covered by brown paper were concealed in the lower side of the suitcase. Those
packets also contained Heroin. They were marked 'B' and 'C'. Packet 'B' contained
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2070 gms and packet 'C' contained 1950 gms Heroin. Two representative samples of
50 gms of each were taken from each polythene packets and sealed and labelled. The
applicant came to be arrested.
5. Mr. Naphade, learned Counsel for the applicant submitted that the
applicant is 76 year old, highly qualified Professor of repute. The applicant has been
falsely roped in. Mr. Naphade submitted that there is non-compliance of the mandate
contained in Section 50 of the Act as the apprisal memo does not indicate that the
applicant was apprised of his right to be searched before the nearest Magistrate or
Gazetted Officer.
6. Secondly, the apprisal of the right was vitiated as the applicant was
apprised that Sanjay Dube, ASP/CBI, EO, a Gazetted Officer was available with the
CBI team. Such apprisal is clearly in teeth of the decision of the Supreme Court in the
case of State of Rajasthan V/s. Parmanand and Anr.1
7. Thirdly, the search was also vitiated as it was carried out by
unauthorized persons. Taking the Court through the seizure panchanama and the
statements of the panch witnesses, it was submitted that the search was carried out by
the panch witnesses and not by the Authorized Officer.
8. Fourthly, there is total non-compliance of the mandatory provisions
contained in Section 52-A of the Act. The IO, in fact, did not take recourse to the
1 2014 (5) SCC 345
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provisions contained in Section 52-A(2) of the Act and instead a strange procedure of
obtaining the permission to retain the documents, articles and samples from the
jurisdictional Magistrate was followed. Therefore, the applicant deserves to be
enlarged on bail.
9. In opposition to this, Mr. Munde, learned Special PP, submitted that, at
this stage, the prosecution case is required to be considered as a whole. Huge quantity
of heroin was found in possession of the applicant. The search and seizure has been
witnessed by as many as eight independent witnesses. The seizure operation was
carried out pursuant to a specific information received from Interpol. In this
backdrop, the bar contained in Section 37 of the Act is clearly attracted and the
grounds sought to be urged on behalf of the applicant do not merit countenance.
10. Mr. Munde further submitted that, in the facts of the case, the
provisions contained in Section 50 of the Act, were not at all attracted as the
contraband was not found on the person of the applicant, but the trolley suitcase
which the applicant was carrying. Reliance was placed on decisions of the Supreme
Court in the cases of Than Kunwar V/s. State of Haryana 2 and Dayalu Kashyap
V/s. The State of Chhattisgarh3. Mr. Munde would urge that the submission that
the search has been carried out by unauthorized persons is not borne out by the record
as the search was carried out by an empowered officer.
2 (2020) 5 SCC 260
3 2022 LiveLaw (SC) 100
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11. On the aspect of the non-compliance of Section 52-A of the Act, Mr.
Munde would urge that since the entire bulk recovered from the possession of the
applicant has been stored and can be produced before the Special Court, the
provisions contained in Section 52-A of the Act, are not required to be followed.
12. I have given careful consideration to the rival submissions. From the
perusal of the seizure memo, it becomes abundantly clear that the contraband was
allegedly found concealed in the pink trolley suitcase which was being carried by the
applicant as a check-in baggage. The contraband was not recovered from the 'person'
of the applicant.
13. Learned Counsel for the Applicant submitted that when the person of
the applicant was searched along with the baggage allegedly carried by the applicant,
scrupulous compliance of the provisions contained in Section 50 of the Act is
warranted. A very strong reliance was placed on the decision of the Supreme Court in
the case of State of Rajasthan V/s. Parmanand and Anr. (supra), the apprisal in the
form of a third option, namely search before the Superintendent, a Gazetted Officer,
who was the part of the raiding party, in addition to search before the nearest
Magistrate or Gazetted Officer, was held to be in breach of Section 50(1) of the Act.
It was enunciated that the idea behind taking an accused to the nearest Magistrate or
the nearest Gazetted Officer, if he so requires, is to give him a chance of being
searched in the presence of an independent officer. Therefore, it was improper for IO
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to inform the Respondents - suspects that a third alternative was available and that
they could be searched before PW5, the Superintendent, who was part of the raiding
party. A member of the raiding party cannot be called as an independent officer.
14. Secondly, in the case of Parmanand and Anr. (supra), the Supreme
Court had also enunciated that if merely a bag carried by a person is searched without
there being any search of his person, Section 50 of the NDPS Act will have no
application. But if the bag carried by him is searched and his person is also searched,
Section 50 of the NDPS Act will have application.
15. For the aforesaid proposition, the two Judge Bench in the case
Parmanand and Anr. (supra), had relied upon a previous decision of the Supreme
Court in the case of Dilip and Anr. v/s. State of Madhya Pradesh4. Mr. Naphade
would urge that in the facts of the instant case, non-compliance of Section 50 of the
Act is evident on both the counts adverted to in the case of Parmanand and Anr.
(supra).
16. I am afraid to accede to this submission. In the case of State of Punjab
V/s. Baljinder Singh and Anr.5, a three Judge Bench of the Supreme Court in the
backdrop of the law laid down in the case of Dilip and Anr. V/s. State of Madhya
Pradesh (supra), considered the following question :
"If a person found to be in possession of a vehicle containing contraband is
subjected to personal search, which may not be in conformity with the
4 (2007) 1 SCC 450
5 (2019) 10 SCC 473
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requirements under Section 50 of the Act; but the search of the vehicle
results in recovery of contraband material, which stands proved
independently; would the accused be entitled to benefit of acquittal on the
ground of non-compliance of Section 50 of the Act even in respect of
material found in the search of the vehicle ?"
17. In the case of Baljinder Singh and Anr. (supra), the personal search of
the accused did not result in any recovery of the contraband. Even if there was any
such recovery, the Supreme Court held the same could not be relied upon for want of
compliance of requirements of Section 50 of the Act. But the search of vehicle and
recovery of contraband 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) recorded by the Constitution Bench in paragraph 57 of its Judgment in the case of
State of Punjab V/s. Baldev Singh 6. It was further observed that the decision of the
Supreme Court in the case of Dilip and Anr. (supra), had not adverted to the
distinction 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.
18. Mr. Naphade attempted to salvage the position by canvassing a
6 (1999) 6 SCC 172
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submission that the decision in the case of Parmanand and Anr., (supra) was
approved by another three Judge Bench in the case of SK Raju @ Abdul Haque @
Jagga V/s. State of West Bengal7. Therefore, Parmanand and Anr. (supra), still
holds the field.
19. I am unable to agree with this submission. This position was clarified by
the two Judge Bench in the case of Than Kunwar V/s. State of Haryana (supra), on
which reliance was placed by Mr. Munde. The observations in paragraph 22 in the
said case read as under :
"22. Having regard to the judgment by the three-Judge Bench, which
directly dealt with this issue viz. the correctness of the view in Dilip (supra),
reliance placed by the appellant on para 16 may not be available. As already
noticed, we are not oblivious of the observation which has been made in the
other three-judge Bench judgment of this Court in Raju (supra), which it
appears, was not brought to the notice of the Bench which decided the case
later in Baljinder Singh (supra). We notice however, that the later decision
draws inspiration from the Constitution Bench decision in Baldev Singh
(supra). We also notice that this is not a case where anything was recovered
on the alleged personal search. The recovery was effected from the bag for
which it is settled law that compliance with Section 50 of the Act is not
required."
20. In view of the aforesaid enunciation, in the facts of the case, the ground
of non-compliance of Section 50 of the Act, prima facie, does not seem to be available
to the applicant.
7 (2018) 9 SCC 708
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21. The second count of the search having been carried out by the
unauthorized person hinges upon the contents of the seizure memo and the
statements of independent panch witnesses - Vishal Patil and Ashish Gawas. The
seizure memo records that in the office of DC-Custom, upper side of the suitcase was
opened by the independent witnesses in the presence of the CBI Team. It went on to
record that the lower side of the suitcase was opened by independent witnesses. The
seizure memo further records that even the search of black hand bag and brown trolley
bag was conducted through independent witnesses. The statements of the witnesses,
namely, Vishal Patil and Ashish Gawas, indicate that the personal search as well as the
search of the trollies being carried by the applicant was conducted through
independent witnesses and they opened pink colour trolley suitcase in which the
contraband was found.
22. Mr. Munde, learned Special PP, submitted that the search was carried
out in the presence of an empowered officer. The mere fact that in the panchanama, it
is recorded that the trolley bag was opened by the independent panch witnesses does
not imply that the search was not carried out by the empowered officer.
23. Indeed, the seizure memo as well as the statements of the panch
witnesses record that the search was carried out and suitcases were opened by
independent witnesses in the presence of the CBI team. However, the aspect as to
whether the search was carried out by the empowered officer appears to be prima facie
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debatable. The seizure memo and the statements of the witnesses do not indicate that
the search was carried out by the empowered officer in the presence of independent
witnesses. Conversely, it is recorded that the search was carried out through or by the
independent witnesses in the presence of the CBI team. Prima facie, there is
substance in the submission on behalf of the applicant that from the material on
record, an inference becomes deducible that the search was carried out by an
unauthorized persons.
24. In this context, reliance was placed by Mr. Naphade on an order passed
by this Court in the case of Manish Kumar Boricha V/s. The State of Maharashtra8,
wherein the Court was persuaded to grant bail as from the panchanama, prima facie, it
appeared that the search was carried out by the panchas and the police personnel and
the panchas were not authorized to carry out search.
25. In the case of Sunday Eziko Ezabgwu V/s. The State of Maharashtra 9
I had an occasion to consider the ground of search being carried out by an
unauthorized person. It was, inter alia, observed as under :
"8. The second ground of search having not been carried out by a
person who was authorized under section 42 of the NDPS Act also prima
facie carries conviction. In the FIR as well as in the seizure panchanama, it is
categorically recorded that the search of the person of the applicant was
conducted by the panch witness and other police personnel on the
directions of Mr. Shewale, PI, the authorized officer. Such a search by the
8 BA No.1163 of 2022 dt. 2 January 2023
9 BA No.3318 of 2023 dt. 29 February 2024
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persons who are not authorized even in the presence, or by the direction, of
authorized officer has been held to be in breach of the provisions contained
in sections 50 and 42 of the NDPS Act.
9. In the case of Aarif Akram Shaikh vs. The State of
Maharashtra10 a learned single Judge of this Court after referring to
an earlier order in the case of Hazi Mohd. Abdul Kadar Bhumedia vs.
The State of Maharashtra11 observed that having regard to the language of
section 42 of the NDPS Act only the officers mentioned
therein are empowered to carry out the search. It may be that the
PSI was authorized, but the search was also carried out by the
Police Naik. The Police Naik was not authorized to carry out the
search. Prima facie, the search carried out also by one of the
officials (Police Naik), who was not authorized, renders the search illegal. In
the said case, the learned single Judge referred to a
decision in the case of Dilkush Sinai vs. State of Goa 12 where the PSI
himself did not search the accused but directed the two panch
witnesses to conduct the search and the question that arose was,
whether search by panchas in the presence of PSI was legal. The
Division Bench, in the said case, had held that the search was
effected by person unauthorized to effect the search under the law
and that the trial of the accused was vitiated as a result of said
unauthorized illegal search."
26. Moreover, the ground of non-compliance of the mandatory provisions
contained in Section 52-A of the Act, appears to be manifest. Mr. Munde did not
make an endeavour to urge that there was compliance of the said provision. On the
contrary, it was submitted that when the entire bulk is available and can be produced
10 BA No.3158 of 2021 dt. 07/02/2023
11 BA No.378 of 2022
12 1995(2) Goa L.T.
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before the Special Court, at the stage of trial, the provisions contained in Section 52-A
of the Act, are not attracted.
27. From the perusal of the material on record, it appears that on 8 January
2022, an application was filed before the learned Additional Chief Metropolitan
Magistrate, 37th Court, Esplanade Court, Mumbai, seeking permission for production
of document and retention of seized documents/articles and samples for investigation.
The Court seems to have allowed the application as prayed. An endeavour was made
to urge that with the said authorization, the entire bulk has been retained and,
therefore, it can be produced before the Special Court at the stage of trial.
28. I find it rather difficult to accede to the submission proposed to be
canvassed by the learned Special PP. Two things are absolutely clear. First, the
procedure as mandated by Section 52-A of the Act, was not at all carried out. Second,
the prosecution case rests on the samples collected by the authorized offier at the time
of the seizure itself.
29. In a line of decisions, the Supreme Court has emphasized that collection
of the samples of contraband article at the time of seizure itself is not envisaged by the
provisions contained in NDPS Act, 1985. The provisions contained in section 52A of
the NDPS Act, 1985 have been held to be mandatory in nature. A profitable reference
in this context can be made to the decision of the Supreme Court in the case of Union
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of India V/s. Mohanlal and Anr. , wherein the Supreme Court held that the
13
procedure prescribed in Section 52-A is of mandatory nature and it was obligatory to
prepare an inventory of seized contraband and then make an application to the
Magistrate for the purpose of getting its correctness certified. The observations in
paragraphs 15 to 17 read as under :
"15.It is manifest from Section 52-A(2)(c) (supra) that upon seizure of the
contraband the same has to be forwarded either to the officer in-charge 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 sooner the seizure is
effected and the contraband forwarded to the officer in charge 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.
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
13 (2016) 3 SCC 379
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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."
30. In the case of Yusuf @ Asif V/s. State14, the Supreme Court after
following the decision in the case of Union of India V/s. Mohanlal (supra),
enunciated, 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."
31. In the case of Simaranjit Singh V/s. State of Punjab15, the Supreme
Court after extracting the observations in paragraphs 15 to 17 (extracted above) in the
case of Union of India V/s. Mohanlal (supra), observed that the act of the officer
drawing samples from all the packets at the time of seizure is not in conformity with
the law laid down by Supreme Court Court in the case of Mohanlal (supra). That
creates a serious doubt about the prosecution case that substance recovered was a
14 Cri.Appeal 3191 of 2023 Dt.13/10/2023.
15 2023 SCC Online SC 906.
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contraband, and the Supreme Court, thus, set aside the judgment of conviction and
sentence.
32. In the latest pronouncement in the case of Mohammed Khalid and
another vs. The State of Telangana 16 the Supreme Court observed in emphatic
terms that since no proceedings under Section 52-A 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.
33. In view of the aforesaid enunciation of law, the submission of Mr.
Munde that since bulk is available, compliance of the mandate contained in Section
52-A of the Act, is not warranted, does not merit acceptance. If the submission sought
to be canvassed on behalf of CBI is accepted, the provisions contained in Section 52-A
would be rendered otiose.
34. The submission of Mr. Naphade that a strange procedure of obtaining
the approval of the learned Magistrate for retention of the contraband substance and
the articles was adopted appears to be well founded. Such course has no legal sanctity.
35. The upshot of aforesaid consideration is that the grounds of the search
having been carried out by unauthorized persons and the non-compliance of the
mandatory provisions contained in Section 52-A of the Act, prima facie, appear to be
16 Criminal Appeal No(S).1610/2023, dtd.1/3/2024.
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sustainable.
36. The applicant is 76 years of age. The applicant has been in custody since
November 2022. It is unlikely that the trial can be concluded within a reasonable
period. In these circumstances, I am impelled to hold that a substantial probable cause
to hold that the applicant may not be guilty of the offences for which he has been
arraigned, has been made out. The Court is not informed that the applicant has
antecedents. The interdict contained in Section 37 of the Act, thus, may not be
attracted.
37. I am, therefore, inclined to allow the application.
38. Hence, the following order :
ORDER
(i) The Application stands allowed.
(ii) The Applicant - Jasinski Andrzej Wieslaw be released on bail in R.C.
220 2022 E 0014 registered with CBI, EO - II, New Delhi, on furnishing a PR bond in
the sum of Rs.1,00,000/- and one or two sureties in the like amount to the satisfaction
of the trial Court.
(iii) The applicant shall mark his presence before CBI, EO-II, New Delhi, on
first Monday of every 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
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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 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) Subject to the proceedings for deportation for overstay, the applicant
shall not leave the country without prior permission of the Special Court.
(vii) The applicant shall regularly attend the proceedings before the
jurisdictional Court.
(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 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: 07/05/2024 19:35:01
