Bombay High Court
Abdul Kadar Shaikh vs Union Of India on 7 May, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:21218
901-ba-4047-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.4047 OF 2023
Abdul Kadar Shaikh ...Applicant
vs.
Union of India
(Through Narcotic Control Bureau) ...Respondent
Mr. Kushal Mor a/w. Mr. Tanvir K. i/b. Mr. Apoorv Srivastava, for
the Applicant.
Mr. Shreeram Shirsat, Special PP a/w. Ms. Tanvi Mate, for
Respondent No.1- UOI.
Ms. Supriya Kak, APP, for the Respondent/State.
CORAM : N. J. JAMADAR, J.
RESERVED ON : APRIL 01, 2024
PRONOUNCED ON : MAY 07, 2024
P.C.:
1. Heard the learned counsel for the parties.
2. The applicant, who is arraigned in C.R. No. 94 of 2021
registered with Narcotics Control Bureau, Mumbai for the offences
punishable under sections 20(b)(ii)(A), 21(b), 22(b), 22(c), 25, 27,
28, 29 and 35 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (the NDPS Act, 1985), seeks to be enlarged on bail.
3. On 2nd October, 2021 the officers of the NCB effected seizure of
narcotic substance from the co-accused at International Cruise
Terminal, Green Gate, Mumbai. The co-accused made disclosures.
Mohak Jaiswal, one of the co-accused, named the applicant as one
of the peddlers.
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4. Pursuant to an intimation, on 3 rd October, 2021 at about 7.40
pm, a surveliance was mounted opposite Shoopers Stop Mall, Juhu
Link Road, Mumbai. The applicant, whose features matched the
description given by the informant, arrived near the bus pick up
shed. The applicant was accosted. He was apprised of his legal right
to be searched before the nearest Magistrate or gazetted officer
under section 50 of the NDPS Act, 1985. The applicant volunteered
to be searched by the NCB officials. In the search of the applicant,
two transparent zip lock polythene pouches consisting of 2.5 gms
tablets purported to be Ecstasy pills (MDMA) and 54.3 gms off
white crystalline powder purported to be Mephedrone (MD) were
found. The contraband articles were seized. The applicant came to
be arrested on 4th October, 2021 at about 6.00 pm.
5. Mr. Kushal Mor, the learned counsel for the applicant,
submitted that the applicant has been falsely roped in as is evident
from the material on record. The alleged search of the contraband
substance from the possession of the applicant is thoroughly
vitiated on account of non-compliance of the mandate contained in
section 50 of the NDPS Act, 1985, on two counts. First, the apprisal
memo does not specifically inform the applicant that he has a legal
right to be searched 'only' before the nearest Magistrate or
Gazetted officer and, second, despite the applicant not availing the
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right to be searched before the Magistrate or Gazetted officer, it was
incumbent upon the NCB officials to conduct the search before the
Gazetted officer. To lend support to the first submission, reliance
was placed on the decision of this Court in the case of Sholadoye
Samuel Joy vs. The State of Maharashtra1 and in respect of the
latter submission reliance was placed on a decision fo the Supreme
Court in the case of Arif Khan @ Agha Khan vs. State of
Uttarakhand2.
6. Secondly, no credence can be given to the search and seizure
as Aadil Usmani, the alleged panch witness, is a stock witness of the
NCB and he has acted as a panch in as many as 17 other crimes. Mr.
Mor further submitted that the CCTV footages at the place of
seizure indicate that the panch witness entered at the alleged spot
of recovery with a bag in his hand and, subsequently, rode away on
the applicant's scooty. Thirdly, there is non-compliance of the
mandate contained in section 52A of the NDPS Act, 1985 as those
proceedings were carried out belatedly on 4 th December, 2021. The
delay of almost two months in drawing the samples gives rise to the
issue of safe custody of the seized substance during the intervening
period. Fourthly, the CA report indicates that the sample which was
received for analysis contained brown powder as against white
1 BA No.2295 of 2021 Dt. 20/01/2022.
2 (2018) 18 Supreme Court Cases 380.
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powder allegedly recovered from the possession of the applicant.
Lastly, it was submitted that the applicant has been incarcerated
for more than 28 months. Rest of the accused have been released on
bail. In the backdrop of the number of accused and the evidence
which the prosecution is required to adduce at the trial it is
extremely unlikely that the trial can be concluded in a reasonable
period. Thus on the count of long incarceration as well, the
applicant deserves to be enlarged on bail.
7. Mr. Shirsat, the learned Special PP, countered the
submissions on behalf of the applicant. It was urged that there is no
requirement in law that a suspect be informed that he has legal
right to be searched 'only' before the Magistrate or Gazetted officer.
The decision of this Court in the case of Sholadoye Joy (supra) is
per incuriam the Supreme Court judgment in the case of State of
Punjab vs. Baldev Singh3 and Vijaysinh Chandubha Jadeja v. State
of Gujarat4.
8. In the case of Vijaysinh Jadeja (supra), the Supreme Court
nowhere enunciated that the suspect should be apprised that he has
right to be searched 'only' before the Magistrate or Gazetted officer.
Vijaysinh Jadeja (supra) further enunciates in clear and explicit
terms that, "the suspect may or may not choose to exercise the
3 (1999) 6 Supreme Court Cases 172.
4 (2011) 1 Supreme Court Cases 609.
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right provided to him under the provision of NDPS Act, 1985.
Therefore, it can not be urged that even though the suspect declined
to avail the right under section 50 of the NDPS Act, 1985, there is
still an obligation on the investigating officer to have the suspect
searched before the gazetted officer. Mr. Shirsat submitted that this
position has been clarified by the Delhi High Court in the case of
Nabi Alam v. State (Govt. of NCT of Delhi) 5. In the context of the
decision of the Supreme Court in the case of Arif Khan @ Agha Khan
v. State of Uttarakhand6 on which reliance was placed by Mr. Mor.
9. Mr. Shirsat, further submitted that the weight to be attached
to the evidence of the panch witness would be a matter for trial. At
this stage, a panch witness can not be branded as a liar for having
acted as a panch in other cases. To this end, Mr. Shirsat placed
reliance on the Division Bench judgment of this Court in the case of
Shaukat Ali Sayyed Rashid v. State of Maharashtra 7 and a judgment
of a learned single Judge in the case of Sultan Ahmad Abdul Rauf v.
State of Maharashtra8. The challenge to the seizure, on behalf of
the applicant, based on the CCTV footages was also stated to be a
matter for trial.
10. Mr. Shirsat, learned Spl. PP would further urge that there is
5 2021 SCC OnLine Del 3055.
6 (2018) 18 Supreme Court Cases 380.
7 2000 (2) Mh.L.J. 175.
8 2019 SCC OnLine Bom 7584.
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scrupulous compliance of the mandatory provisions contained in
section 52A of the NDPS Act, 1985 and, in fact, the investigating
officer has made the application before the jurisdictional Magistrate
on 18th November, 2021. Thus, the applicant can not draw any
mileage from the fact that there was an interval of time between the
seizure and proceedings under section 52A, before the learned
Magistrate.
11. In any event, there is material to show that the contraband
remained in a sealed state with the custodian of the muddemal
property during the interregnum. This evidence, according to Mr.
Shirsat, also constitutes an answer to the ground of change in the
colour of the substance of the sample which was received for
analysis by CFSL. Mr. Shirsat made an endeavour to urge that by
the passage of time, the colour of the contraband substance suffered
a change.
12. I have given anxious consideration to the rival submissions.
With the assistance of the learned counsel for the parties, I have
perused the material on record.
13. Prima facie, there appears to be compliance of the provisions
contained in section 50 of the NDPS Act, 1985. The apprisal memo
dated 3rd October, 2021 clearly records that the suspect had a right
to tender personal search before the nearest Magistrate or Gazetted
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officer. It appears that the applicant volunteered to be searched by
NCB officials. It is true, the word 'only' does not find mention in the
apprisal memo. In the case of Sholadoye Joy (supra), on which
reliance was placed by Mr. Mor, a learned single judge of this Court,
after adverting to the decision of Vijaysinh Jadeja (supra),
observed that it is imperative on the part of the police officer to
apprise the suspect of his vested right to be searched 'only' by a
Gazetted Officer or a Magistrate.
14. The submission of Mr. Shirsat, the learned Special PP, that the
aforesaid observation is per incuriam the decisions in Baldev Singh
(supra) and Vijaysinh Jadeja (supra) need not be delved into
elaborately by referring to doctrine of per incuriam. It would be
suffice to note whether the proposition that the apprisal of the right
to be searched, "only" before the Magistrate or a Gazetted officer
flows from the decision in the case of Vijaysinh Jadeja (supra) from
which this Court purportedly drew support in the case of Sholadoye
Joy(supra).
15. In In the case of Vijaysinh Jadeja (supra), the Constitution
Bench enunciated as under:-
29] In view of the foregoing discussion, we are of the
firm opinion that the object with which right under
Section 50(1) of the NDPS Act, by way of a safeguard,
has been conferred on the suspect, viz. to check the
misuse of power, to avoid harm to innocent persons
and to minimise the allegations of planting or foisting
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of false cases by the law enforcement agencies, it
would be imperative on the part of the empowered
officer to apprise the person intended to be searched
of his right to be searched before a gazetted officer or
a Magistrate. We have no hesitation in holding that in
so far as the obligation of the authorized officer under
sub-section (1) of Section 50 of the NDPS Act is
concerned, it is mandatory and requires a strict
compliance. Failure to comply with the provision
would render the recovery of the illicit article suspect
and vitiate the conviction if the same is recorded only
on the basis of the recovery of the illicit article from
the person of the accused during such search.
Thereafter, the suspect may or may not choose to
exercise the right provided to him under the said
provision.
(emphasis supplied)
16. Evidently, the Supreme Court has not used the word, "only". It
was in paragraph 6 of the judgment in the case of Vijaysinh Jadeja
(supra) wherein the Supreme Court noted the submission on behalf
of the appellant that the suspect has a vested right to be searched,
'only' by the Gazetted officer or a Magistrate.
17. Thus, I find substance in the submission of Mr. Shirsat that
the apprisal cannot be faulted at for the absence of the word, "only"
before the nearest Magistrate or gazetted officer.
18. The matter can be looked at from another perspective. In the
case of Baldev Singh (supra), the Supreme Court has ruled that it is
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 concerned person orally and as far as possible
in the presence of some independent and respectable persons
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witnessing the arrest and search. Therefore, the absence of the
word 'only' does not detract materially from the apprisal memo.
19. The second limb of the submission of Mr. Mor that despite the
applicant having declined to avail the right, it was incumbent upon
the investigating officer to search the person of the applicant in the
presence of Magistrate or a gazetted officer on the strength of the
decision in the case of Arif Khan (supra) also does not merit
countenance. In the case of Vijaysinh Jadeja (supra), in paragraph
29 of the judgment, the Constitution Bench has, in terms,
enunciated that 'thereafter the suspect may or may not avail the
said right'.
20. This position has been recently clarified by the Supreme Court
in the case of Ranjan Kumar Chadha v. State of Himachal Pradesh 9
in the following words:
61] The observations made in Arif Khan (supra) are
in direct conflict with the Constitution Bench decision
of Baldev Singh (supra).
62] We are of the view that the decision of this Court
in Arif Khan (supra) cannot be said to be an authority
for the proposition that notwithstanding the person
proposed to be searched has, after being duly apprised
of his right to be searched before a Gazetted Officer or
Magistrate, but has expressly waived this right in
clear and unequivocal terms, it is still mandatory that
his search be conducted only before a Gazetted Officer
or Magistrate.
(emphasis supplied)
21. An endeavour on the part of the applicant to throw a cloud of
9 2023 SCC OnLine SC 1262.
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doubt over the search and seizure by referring to CCTV footages, at
this stage, does not commend itself. That would be a matter for
evidence and trial.
22. On the aspect of Adil Usmani being a stock panch, though the
applicant has placed on record documents to indicate that Adil
Usmani has acted as panch witness for the NCB in as many as 17
crimes, under a year, which may give rise to an inference that Mr.
Adil Usmani is at the beck and call of the police, yet, the weight to be
attached to the testimony of Adil Usmani, would be a matter for
trial. I do not consider it necessary to delve into the decisions cited
by Mr. Mor and Mr. Shirsat in respect of the rival submissions as
the issue boils down to the weight to be attached to the testimony of
such a witness. Nonetheless, the Court can not simply brush aside
the fact that Adil Usmani has acted as a panch witness in so many
cases. If there are concomitant circumstances, the fact that a
premier agency employs the same panch witness in a number of
crimes may impair the search and seizure, in a given case.
23. The aspect of delay in conducting the proceedings under
section 52A of the NDPS Act, 1985 is required to be appreciated in
the light of the obligation of the empowered officer under section
52A(2) of the NDPS Act, 1985 and the duty cast on the Magistrate
under sub section (3) of Section 52A. In the case of Union of India v.
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Mohanlal and Another10, the Supreme Court has enunciated that,
"There is equally no doubt that the process of
making any such application and resultant sampling
and certification cannot be left to the whims of the
officers concerned. The scheme of the Act in general
and Section 52-A in particular, does not brook any
delay in the matter of making of an application or the
drawing of samples and certification. While we see no
room for prescribing or reading a time frame into the
provision, we are of the view that an application for
sampling and certification ought to be made without
undue delay and the Magistrate on receipt of any such
application will be expected to attend to the
application and do the needful, within a reasonable
period and without any undue delay or
procrastination as is mandated by sub-section (3) of
Section 52A.
(emphasis supplied)
24. In the case at hand, the seizure was effected on 3 rd October,
2021. The investigating officer, it appears, made an application
before the jurisdictional Magistrate on 18th November, 2021. The
proceedings before the learned Magistrate were conducted on 4 th
December, 2021. There is element of delay on the part of
investigating officer, in seeking the certification of the inventory of
the contraband and drawing of samples thereof.
25. In the case at hand, this interval of time between the seizure
and inventory assumes significance in the context of the fact that
the examination report issued by CFSL dated 21 st February, 2022,
indicates, inter alia, that the Exhibit M1, a transparent zip lock bag
containing brown colour powder, stated to be 5 gm MD, was
10 (2016) 3 Supreme Court Cases 379.
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received for analysis, though the sample which was drawn from the
contraband allegedly recovered from the person of the applicant
was allegedly a white colour powder substance as recorded in the
seizure panchanama. Prima facie, there is discrepancy in the
description of the contraband which was allegedly seized from the
applicant and sample collected therefrom, and the sample which
was received for analysis by the CFSL.
26. Mr. Shirsat, the learned Special PP, attempted to salvage the
position by canvassing a submission that colour of the sample could
change as it was exposed to air during the process of inventory and
sampling. Though the submission appears alluring at the first blush,
yet, it would require evidence to bolster up the submission that
there was possibility of such change in colour by the passage of
time. It is in this context, the aspect of delay in conducting the
inventory of the seized substance and drawing of samples before the
Magistrate and the analysis of the sample by the CFSL assumes
critical salience.
27. As the identity of the sample is in the corridor of uncertainty,
and the complicity of the applicant is primarily based on the seizure
of the contraband from the applicant, a prima facie case to hold that
eventually the applicant may not be found guilty of the offences can
be said to have been made out.
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28. In any event, the applicant has been in custody since 4 th
October, 2021. The applicant has been incarcerated for 2 and half
years. I find substance in the submission of Mr. Mor that having
regard to the number of accused arraigned in the crime, and the
evidence which the prosecution may be required to be adduce to
bring home the charge against the accused, it is extremely unlikely
that the trial can be concluded within a reasonable period.
29. It is well neigh settled that a long period of incarceration
without a realistic prospect of expeditious conclusion of the trial
renders the detention of the accused as an undertrial prisoner foul
of the right to speedy trial; a facet of right to life and personal
liberty guaranteed under Article 21 of the Constitution of India. It
has been held that the statutory restrictions in the matter of
granting bail, like the one under section 37 of the NDPS Act, 1985,
melt down in the face of such prolonged period of incarceration
without the prospect of expeditious conclusion of the trial. (Union of
India vs. K.A. Najeeb11.
30. A useful reference in this context can also be made to a
decision of the Supreme Court in the case of Rabi Prakash v. The
State of Odisha12, wherein the Supreme Court observed that,
"The prolonged incarceration, generally militates
against the most precious fundamental right
11 (2021) 3 SCC 713.
12 Spl. Leave to Appeal (Cri.) No. 4169 of 2023
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guaranteed under Article 21 of the Constitution and in
such a situation, the conditional liberty must override
the statutory embargo created under section 37(1)(b)
(ii) of the Act.
31. The Court is not informed that the applicant has antecedents.
Thus, the Court may be justified in drawing an inference that the
applicant may not indulge in identical activities if enlarged on bail.
32. For the foregoing reasons, I am persuaded to hold that the
applicant deserves to be enlarged on bail.
Hence, the following order.
ORDER
1] The application stands allowed.
2] The applicant be released on bail in C.R. No. 94 of 2021
registered with Narcotics Control Bureau, Mumbai 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 NCB, Mumbai on the
first Monday of every month between 11 am to 1 pm for a period of
three years or till conclusion of the trial, 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.
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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.)
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