Bombay High Court

Chandan Dinesh Thakur vs The State Of Maharashtra on 7 May, 2024

Author: N. J. Jamadar

Bench: N. J. Jamadar

2024:BHC-AS:22432
                                                                                 20-BA2591-2023.DOC

                                                                                                  Santosh

                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CRIMINAL APPELLATE JURISDICTION


                                        BAIL APPLICATION NO. 2591 OF 2023
SANTOSH
SUBHASH               Chandan Dinesh Thakur                                          ...Applicant
KULKARNI
Digitally signed by
SANTOSH SUBHASH
                                           Versus
KULKARNI
Date: 2024.05.15
14:46:21 +0530
                      State of Maharashtra                                       ...Respondent

                      Mr. Kamlesh Satre, a/w Vikas Chavan, Nilesh Bangar, for
                            the Applicant.
                      Mr. Prashant Jadhav, APP, for the State/Respondent No.1.
                      API Mangesh Burhodo, Kashimira Police Station, present.

                                                            CORAM: N. J. JAMADAR, J.
                                                            DATED: 7th MAY, 2024

                      ORDER:

1. The applicant, who is arraigned in CR No.675 of 2022,

registered with Kashimira Police Station, Thane, for the offences

punishable under Sections 21(c) and 22 of the Narcotic Drugs

and Psychotropic Substances Act, 1985 ("the NDPS Act, 1985")

and Sections 420, 465, 468, 471 and 473 read with 34 of the

Indian Penal Code, 1860 ("the Penal Code"), has preferred this

application to enlarge him on bail.

2. On 27th September, 2022, the crime branch police

attached to Mira Bhyander and Vasai Virar Police

Commissionerate were on a patrolling duty. At about 4.00 p.m.

when the police party reached near Sharmila Pagi Compound,

Kashimira, a tempo bearing registration No.MH-48/CB-4402

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and a car bearing registration No.MH-02/BY-3422 were found

parked adjacent to each other. Janardan Misal (A1) was the

driver of the tempo bearing registration No.MH-48/CB-4402.

The applicant was the driver of the car bearing registration

No.MH-02/BY-3422. The police party noticed that the goods

from the tempo were being transferred to the car. The

movements of the drievers appeared suspicious. They gave

evasive replies.

3. In the presence of the panch witness, the police party

conducted the search. It transpired that 32 boxes containing

Phensirest Syrup containing label "(Rx Chlorpheniramine Maleate Codeine

Phosphate Syrup PHENSIREST SYRUP COUGH 100 ml., Anti Allergic, Anti Tussive for dry cough

composition: Chlorpheniramine Maleate IP 4 mg., codeine phosphate IP 10 mg. Schedule H1

Prescription caution: It is dangerous to take this preparation except in accordance with the medical

advice. Not to be sold by retail without prescription of Registered Medical Practitioner)" were

found in the tempo. Thus, there were 4608 bottles of Phensirest

in the said tempo which contained Codeine Phosphate, a

contraband substance.

4. In the car of the applicant 36 boxes of RECOKUF Syrup

containing label "(Rx Chlorpheniramine Maleate Codeine Phosphate Syrup RECOKUF

COUGH SYRUP 100 ml., Anti Allergic, Anti Tussive for dry cough composition: Each 5 ml contains

codeine phosphate IP 10 mg. Chlorpheniramine Maleate IP 4 mg Schedule H1 Prescription DRUG

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CAUTION : It is dangerous to take this preparation except in accordance with the medical advice. Not to

be sold by retail without prescription of Registered Medical Practitioner)" were found. Thus,

3,600 bottles containing codeine phosphate were found in

possession of the applicant.

5. The applicant and co-accused were apprised of their right

to be searched before a nearest Magistrate or Gazetted Officer.

The applicant and co-accused declined to avail the said right.

However, in the search of the applicant and co-accused no

contraband article was found. The contraband found in the

tempo and car were seized and samples were collected under

seizure panchnama. The applicant and co-accused were

arrested. Pursuant to the disclosures and further investigation,

eight more accused i.e. accused Nos.3 to 10, were arrested in

the said crime.

6. Mr. Satre, the learned Counsel for the applicant,

submitted that accused Nos.3 to 10 have been released on bail.

There is non-compliance of the mandate contained in Section 42

of the NDPS Act, 1985. When the officer, who effected the

search and seizure, realized that the contraband article might

be available, it was incumbent upon the said officer to thereafter

follow the mandate contained in Section 42 of the NDPS Act,

1985. In the instant case, there is no material to show that the

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provisions contained in Section 42 of the NDPS Act, 1985 were

complied with.

7. To buttress the aforesaid submission, Mr. Satre placed

reliance on a decision of the Supreme Court in the case of

Mohinder Kumar vs. The State, Panaji, Goa 1, wherein it was

enunciated that from the stage the empowered officer had

reason to believe that the accused persons were in custody of

narcotic drugs and sent for panchas, he was under an

obligation to proceed further in the matter in accordance with

the provisions of the Act.

8. Mr. Satre also made an endeavour to urge that the

applicant, being only a driver, was unaware of the contents of

the boxes which he was entrusted to transport. Therefore, the

applicant cannot be said to have been found in conscious

possession of the contraband substance. In any event, there is

a complete non-compliance of the mandate contained in Section

52A of the NDPS Act, 1985. The prosecution case rests on the

samples which were collected at the time of the alleged seizure.

Therefore, the applicant deserves to be enlarged on bail.

9. Mr. Jadhav, the learned APP, opposed the prayer for bail. It

was submitted that huge quantity of cough syrup containing the

1 (1998) 8 SCC 655.

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contraband substance Codeine Phosphate was recovered from

the applicant and co-accused. It was a case of chance recovery.

Therefore, there was no occasion for compliance of the

provisions contained in Section 42 of the NDPS Act, 1985.

Taking the Court through the role attributed to the applicant

and the co-accused who have been released on bail, Mr. Jadhav

submitted that there was a larger conspiracy to traffick in

drugs. Therefore, the applicant does not deserve to be enlarged

on bail.

10. I find substance in the submission of the learned APP that

prima facie, it was a case of chance recovery. While the police

party was on patrolling duty, it appears, the applicant and co-

accused were found unloading the boxes from one vehicle to

another. The applicant and co-accused were allegedly

apprehended in the very act of transferring the boxes of the

cough syrup from the tempo to the car. In the circumstances,

as the contraband came to be seized as a part of a chance

recovery, the provisions contained in Section 42 of the NDPS

Act, 1985, prima facie, may not be attracted.

11. I do not find much force in the submission of Mr. Satre

that the applicant was not found in conscious possession of the

contraband substance. No other person apart from the

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applicant was present with the said substance in the car. The

fact that the applicant and the co-accused were apprehended

while transferring the boxes from the tempo to the car further

incriminates the applicant and indicates an element of control

over the said substance.

12. The ground of non-compliance of the mandate contained

in Section 52A of the NDPS Act, 1985, however, appears to be

well-founded. The seizure panchnama dated 27th September,

2022 records that after 32 boxes of RECOKUF COUGH syrup

were found in the car driven by the applicant, two bottles were

collected by way of sample and marked Exhibits-B1 and B2 for

forwarding the same to FSL for analysis. The rest of the bulk

i.e. 3,598 bottles were marked Exhibit-B. The forwarding letter

dated 28th September, 2022 (pages 86 to 88) inter alia records

that the said two Exhibits containing sample bottles (Exhibits-

B1 and B2), were forwarded for analysis to the FSL.

13. Evidently, the samples were collected at the time of the

seizure of the contraband substance. Conversely, the learned

APP, on instructions, submitted that the proceedings under

Section 52A of the NDPS Act, 1985 were not at all conducted. It

thus appear to be a case of total non-compliance of the

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provisions contained in Section 52A of the NDPS Act, 1985 and

not one of delayed compliance.

14. In the aforesaid context, a reference to three recent

Supreme Court judgments and orders which emphasise that the

compliance of the provisions contained in Section 52A is

mandatory, may be apposite. In the case of Yusuf @ Asif vs.

State2, 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. 3 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

2 Criminal Appeal No.3191/2023.

3 (2016) 3 SCC 379.

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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 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)

15. In the case of Simarnjit Singh vs. State of Punjab4, 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.

4 2023 SCC OnLine SC 906.

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16. In the latest pronouncement in the case of Mohammed

Khalid and another vs. The State of Telangana 5 the Supreme

Court observed 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 the presence of the jurisdictional

Magistrate, the FSL report is nothing but a waste paper and

cannot be read in evidence.

17. In the face of these pronouncements, a complete non-

compliance of the mandate contained in Section 52A may result

in a situation where the prosecution would be bereft of primary

evidence. The omission to conduct the proceedings under

Section 52A, in the light of the enunciation of law, constitutes a

substantial probable cause to believe that the applicant may not

eventually be found guilty of the offence for which he has been

arraigned. The Court is not informed that the applicant has

antecedents. Therefore, the interdict contained in Section 37 of

the NDPS Act, 1985 may not operate.

18. Co-accused Nos.3 to 10 have been released on bail. The

applicant has been in custody since 28th September, 2022.

Having regard to the number of accused and the evidence which

5 Criminal Appeal No(S).1610/2023, dtd.1/3/2024.

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the prosecution may be required to adduce, it is extremely

unlikely that the trial can be concluded within a reasonable

period. I am, therefore, inclined to allow the application.

19. Hence, the following order:

:ORDER:

(i)      Application stands allowed.

(ii)     The applicant be released on bail in CR No.675 of 2022,

registered with Kashimira Police Station, Thane, on

furnishing a P.R. Bond in the sum of Rs.1,00,000/- with

one or more sureties in the like amount to the satisfaction

of the Special Court.

(iii) The applicant shall mark his presence at Kashimira Police

Station, Thane, between 10.00 am. to 12.00 noon, on the

first Monday of every alternate month, for the period of

three years or till conclusion of the trial, whichever is

earlier.

(iv) The applicant shall not tamper with the prosecution

evidence. The 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.

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(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) The applicant shall regularly attend the proceedings

before the jurisdictional Court.

(vii) 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