Bombay High Court
Hanuman Choudhary vs State Of Maharashtra on 25 October, 2024
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
2024:BHC-AS:42739-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION (STAMP) NO.17755 OF 2024
Mr. Hanuman Choudhary
Age- 29 years; Occ: Business,
Having address at Plot No. 302,
Palazzo Greens, B Wing, Petitioner
Vadgaon Maval Fata, Pune
(At present in Yerwada Central
Prison)
Versus
The State of Maharashtra
Through Ravet Police Station, Respondent
Pune
...
Mr. Ali Kaashif Khan Deshmukh a/w Ms Hitanshi Gajaria and
Ms Snigdha Khandelwal, for the petitioner.
Ms M. M. Deshmukh, APP, for the Respondent - State.
Mr. Santosh Patil, Sr.P.I., ANC Pimpri-Chinchwad, is present.
...
CORAM : NITIN W. SAMBRE &
MANJUSHA DESHPANDE, JJ.
RESERVED ON : 25TH SEPTEMBER, 2024
PRONOUNCED ON : 25th OCTOBER, 2024
Judgment : (Per Manjusha Deshpande, J.):-
1. Rule. Rule made returnable forthwith, with the consent
of the parties.
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2. The petitioner in this Writ Petition is seeking declaration
that his arrest is illegal and in gross violation of the
fundamental rights guaranteed to him under Article 21 and 22
of the Constitution of India, in relation to FIR No. 131 of 2024
dated 24.03.2024, registered at Ravet Police Station, Pimpri-
Chinchwad, Pune, for the offence punishable under Sections
8(c), 22(c) and 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short "the NDPS Act, 1985).
3. It is the contention of the petitioner that FIR bearing C.R.
No. 131 of 2024 came to be registered at Ravet Police Station,
Pimpri-Chinchwad for offence under the NDPS Act, 1985
against the Accused No. 1 Rohit Surat Singh. On 23.03.2024
at 19:45 hours, while the narcotic drugs squad and other
police offcers were patrolling near Pimpri-Chinchwad,
suspecting the behaviour of Accused No. 1, who was driving an
Activa Scooty, was stopped and upon questioning he has given
evasive answers. Therefore when he tried to fee he was
apprehended. When he was questioned, he admitted that he
was in possession of Mephedrone (MD) drug. The concerned
police authorities have conducted search and seized 24 grams
Mephedrone (MD) drugs from the body of the Accused No. 1.
Accused No. 1 was charged under Section 8(c) and 22(b) of the
NDPS Act, 1985.
During his police custody on 26.03.2024, Accused No. 1
has given memorandum statement and has given his
willingness to show the place from where he had obtained the
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Mephedrone (MD) drugs. The police authorities alongwith
Accused No. 1 and panch witnesses proceeded to the location.
Upon reaching the location, the offcers introduced themselves
to the petitioner in a shop owned by him. Upon enquiry being
made by the police offcers, the petitioner has admitted and
has stated that, he had more Mephedrone (MD) drug in his
pant pockets. Upon his admission, search of his person was
taken in presence of panch witnesses and 30 grams of
Mephedrone (MD) drug was recovered from the left pocket of
his pants. The police after conducting seizure panchanama as
per the prescribed procedure of law, sealed the parcel. The
petitioner was informed that his action constituted a
cognizable offence under the NDPS Act, 1985 and he was
detained at 21:20 hours on 26.03.2024.
4. The petitioner contends that he was thereafter taken to
the Vadgaon Maval Police Station, when once again it was
confrmed that the Mephedrone (MD) drug came from his
possession. The petitioner was thereafter produced before 6 th
Court of Judicial Magistrate First Class at Vadgaon Maval,
Pune on 27.03.2024. The police custody remand was granted
till 30.03.2024. He was thereafter placed in MCR until
12.04.2024 and his Bail Application has been rejected by the
Additional Sessions Judge, Vadgaon, Pune on 19.07.2024.
5. On the basis of the background as stated hereinabove,
the petitioner has approached this Court invoking Article 21
and 22(1) of the Constitution of India by way of the present
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Writ Petition invoking Article 226 of the Constitution of India
and Section 482 of the Code of Criminal Procedure, 1973.
6. According to the petitioner, his arrest is totally in breach
of constitutional and procedural safeguards. While conducting
his arrest there is a breach of Section 50 of the Cr.P.C, which
mandates that the arresting offcer must inform the arrested
individual of the grounds for his arrest. The failure to do so
constitutes a clear violation of the individual's constitutional
rights and the procedural safeguards established by law. It is
also contended by the petitioner that his detention is also
illegal on account of non-adherence to the procedural
safeguards, such as non-adherence to Section 52(1) of the
NDPS Act, 1985, which mandates the arresting offcer must
inform the arrested individual, of the grounds for his arrest.
This failure constitutes a clear violation of the petitioner's
statutory rights and the procedural norms established by law.
7. It is also contended by the petitioner that his arrest and
detention has also violated Article 22 of the Constitution of
India, which requires an individual to be informed of the
grounds of arrest and to be allowed to consult a legal
practitioner. The failure to provide this information has
deprived him, of his legal right to legal representation and a
fair defence. The petitioner has also relied on Section 50 of the
Cr.P.C., which mandates that, when an individual is arrested
without warrant, the concerned offcer shall forthwith
communicate to him full particulars of the offence for which he
is arrested.
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8. The petitioner has relied on the following authoritative
judicial pronouncements of the Hon'ble Apex Court as well as
this Court:
(i) Pankaj Bansal V/s Union of India and ors.1
(ii) Prabir Purkayastha V/s State (NCT of Delhi)2,
(iii) Manulla M. Kanchwala V/s. The State of
Maharashtra3
(iv) Mahesh Pandurang Naik V/s. State of
Maharashtra4
The petitioner has relied on the aforesaid decisions in
order to illustrate that, non-adherence to the prescribed
procedure of law has resulted in violation of the fundamental
rights guaranteed to him under the Constitution of India. The
petitioner has also placed on record the comparative table of
the present case with the facts and law of the reported
judgments which are referred hereinabove. On this
background, the petitioner has approached this Court seeking
declaration that his arrest is illegal and he should be released
forthwith.
9. After notice was issued to the respondent - State, the
respondent - State has fled their reply affdavit sworn by
Assistant Police Inspector, Mr. Sachin Kadam attached to the
1 2023 SCC OnLine SC 1244
2 2024 SCC OnLine SC 934
3 Cri. Writ Petition No. 3276 of 2024
4 Cri. Writ Petition (Stamp) No. 13835/2024
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Anti Narcotic Cell, Crime Branch, Pimpri-Chinchwad. In the
reply affdavit fled by the concerned authority, the Detaining
Authority has stated that, when Accused No. 1 was arrested on
suspicion and he was found to be in possession of the narcotic
drug Mephedrone (MD), he was interrogated by the concerned
offcers and during his police custody he has revealed that he
is ready to show the place from where he has obtained the
drug. The memorandum panchanama under Section 27 of the
Indian Evidence Act, 1872 was conducted. According to the
statement given by Accused No. 1, the Investigating Offcer
alongwith Accused No. 1 proceeded as per the direction given
by Accused No.1. Upon reaching the place where Accused No.
2 i.e. the petitioner was present, when inquiry was made with
the petitioner, he has accepted that he is in possession of
drugs. On such confession being made, he was made aware
about his right under Section 50(1) of the NDPS Act, 1985 in
Hindi language, which is known to him. Thereafter a detailed
letter of his rights was also prepared in Hindi language and
signed by API, which is handed over to the petitioner. Before
search was conduct, the petitioner was made aware about his
legal right to conduct his personal search in presence of
panchas, to which he has responded stating that, "I understood
my rights, the police can search me and my shop".
During the personal search of the petitioner, a
transparent small plastic bag containing 30 grams of a white
powder of Mephedrone (MD) was found. The said substance
was found in stapled small bag in the left pocket of the trouser
of the petitioner. The said substance was sealed and seized
adhering to the provisions of the NDPS Act, 1985, on the spot
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in the presence of two panch witnesses. It is further stated in
the affdavit that, the panch witnesses and API, who were
present have affxed their signatures on the memorandum
panchanama dated 26.03.2024.
10. It is contended by the learned APP that investigating
machinery has complied with Section 50(1) of the NDPS Act,
1985 and Section 50 of the Cr.P.C. The entry in the station
diary to that effect is also taken.
11. It is the contended by the learned APP that, since the
offence under the provisions of NDPS Act constituted a
cognizable offence, the Investigating Agency detained him at
21:20 hours on 26.03.2024 and, thereafter, the Investigating
Agency brought him before the Senior Police Inspector Mr.
Kumar Kadam attached to Vadgaon Maval Police Station. It is
contended that the petitioner was arrested on 26.03.2024
after following due procedure of law as well as in accordance
with the guidelines of the Hon'ble Apex Court. It is
categorically stated that the grounds of arrest have been
informed to the petitioner at the time of arrest. Considering
the graveness of the offence, the Special Court has rejected the
Bail Application on 19.07.2023 and 18.04.2024. Charge-sheet
is also fled in the matter on 13.06.2024 before the learned
Special Court under the NDPS Act, 1985 at Vadgaon Maval.
Since the petitioner was found with non-commercial quantity
i.e. above 2 grams and below 50 grams, the petitioner was
arrested.
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Though it is the contention of the petitioner that there is
non-compliance of Section 50 of the Cr.P.C. and Section 52(1)
of the NDPS Act and there is a violation of fundamental right
guaranteed under Article 21 and 22 of the constitution. It is
stated by the Detaining Authority that, while arresting the
petitioner, seizure panchanama was drawn on the spot of
incident by the Investigating Agency and the reasons for
inquiry was clearly communicated to the petitioner. It is
further mentioned by the Detaining Authority in his affdavit
that before arresting the petitioner, the arrest form of the
petitioner was duly flled in by API Mr. Gaikwad, in presence of
two panchas and the petitioner has also signed the said arrest
form. After arresting the petitioner, information was given to
his wife and entry in the station diary is also taken to that
effect. The offence being registered under the provisions of
NDPS Act, which is a special enactment, the procedure as
provided in the special enactment was followed.
12. According to the learned APP it is settled position of law
that, fundamental rights guaranteed under the Constitution of
India, are of paramount importance and, therefore, every
possible care should be taken to ensure compliance of the
same. Hence in the light of the observations of the Hon'ble
Apex Court, the grounds of arrest of the petitioner which were
required to be provided to him in writing have been made
available through memorandum panchanama dated
26.03.2024. According to the Investigating Offcer, the
panchanama prepared by the Investigating Agency satisfes
the aforementioned requirements, as such the memorandum
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panchanama was handed over to the petitioner at the time of
his arrest and the same contains the signature of panch
witnesses alongwith the petitioner himself, acknowledging the
receipt of the same, which amounts to communication of the
grounds of arrest. The said document i.e. memorandum
panchanama is self explanatory and the arrest of the
petitioner does not become illegal.
Hence relying on the memorandum panchanama dated
26.03.2024 the Respondent Authorities are trying to contend
that the memorandum panchanama on which the signature of
the present petitioner has been obtained is nothing less than
the communication of grounds of arrest.
13. When the said reply affdavit was fled and the matter
was heard for some time, we had passed an order on
20.09.2024 observing thus:
"In response to the challenge of the arrest being
effected without furnishing the grounds for arrest, the
learned APP Mrs. Deshmukh, has relied upon the
memorandum form under Section 27 of the Indian
Evidence Act, executed when Rohit Surat Singh, one of
the accused was arrested on 24/03/2024. By reading
the said panchanama, it is her contention that the
present petitioner was taken into custody on
26/03/2024, at 21:20 hrs and he was confronted with
the contraband (Mephedrone (MD), which was
recovered and he admitted this substance to be
belonging to him. However, when we perused his arrest
panchanama, it has refected his arrest to be at 23:15
hrs on 26/03/2024, and therefore, the ground raised in
defence of the challenge to the arrest, being that he was
aware of the grounds of arrest as he was confronted
that the contraband falls to its ground. In addition, the
learned APP is unable to assertively state as to which of
the accused has put his signature on the Panchanama.
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We expect a clarifcation to be offered on the said point,
list on 25/09/2024."
The learned APP was also unable to state as to whose
signature was put on the panchanama, therefore seeking
clarifcation on the point the matter was adjourned to
25.09.2024.
When the matter was heard today, the only thing which
was clarifed is that the memorandum panchanama dated
26.03.2024 holds the signature of the petitioner. The said fact
is not disputed by either of the parties.
14. In view of the same, we are required to decide whether
the memorandum panchanama, which is conducted at the
instance of Accused No. 1 Rohit Surat Singh, during which the
possession of the drug by the present petitioner has been
revealed, can be equated with communication of grounds of
arrest.
15. According to the learned APP, the said memorandum
panchanama which is conducted at the instance of Accused No.
1, wherein involvement of Accused No. 2 (petitioner) has been
revealed and the signature of the petitioner has been obtained
on the panchanama amounts to communication of ground of
arrest. According to the learned APP, the petitioner is also
having criminal antecedents, therefore his Bail Application
has been rejected. The grounds of arrest were made known to
the present petitioner in the remand application and
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communication about his arrest to the near relative is in
compliance of the directions issued by the Hon'ble Apex Court.
The near relative of the petitioner has been informed about his
arrest, therefore, there is no illegality or irregularity in the
arrest of the petitioner and, therefore, the Petition deserves to
be dismissed.
16. We have heard the respective counsel and we have also
gone through the annexures to the Writ Petition as well as the
reply affdavit fled by the Detaining Authority. Since the
reliance is categorically placed on the memorandum
panchanama, to demonstrate that the grounds of arrest have
been communicated to the petitioner, upon going through the
same it discloses that, the said memorandum panchanama was
conducted on 26.03.2024 at 18:10 hours to 21:45 hours and
the arrest is shown to be made on 26.03.2024 at 23:15 hours.
17. Section 50 of the Cr.P.C. reads thus:
"50. Person arrested to be informed of grounds of arrest
and of right to bail.- (1) Every police offcer or other
person arresting any person without warrant shall
forthwith communicate to him full particulars of the
offence for which he is arrested or other grounds for
such arrest.
(2) Where a police offcer arrests without warrant any
person other than a person accused of a non-bailable
offence, he shall inform the person arrested that he is
entitled to be released on bail and that he may arrange
for sureties on his behalf."
Similarly, Section 52(1) of the NDPS Act, 1985 provides
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thus:
"52. Disposal of persons arrested and articles seized.-
(1) Any offcer arresting a person under section 41,
section 42, section 43 or section 44 shall, as soon as
may be, inform him of the grounds for such arrest."
Similarly, Article 22(1) of the Constitution of India
mandates as follows:
"22. Protection against arrest and detention in certain
cases.- (1) No person who is arrested shall be detained
in custody without being informed, as soon as may be, of
the grounds for such arrest nor shall he be denied the
right to consult, and to be defended by, a legal
practitioner of his choice."
18. The above referred three provisions require
communication of the grounds of arrest to a person with full
particulars of the offence as early as possible. So far as
grounds of arrest is concerned, there is a distinction between
'grounds of arrest' and 'reasons of arrest'. The settled
difference between two has been explained by the Hon'ble
Apex Court in para 49 of the judgment in case of Prabir
Purkayastha V/s State (NCT of Delhi) (supra), which reads
thus:
"49. It may be reiterated at the cost of repetition that
there is a signifcant difference in the phrase 'reasons
for arrest' and 'grounds of arrest'. The 'reasons for
arrest' as indicated in the arrest memo are purely
formal parameters, viz., to prevent the accused person
from committing any further offence; for proper
investigation of the offence; to prevent the accused
person from causing the evidence of the offence to
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disappear or tempering with such evidence in any
manner; to prevent the arrested person for making
inducement, threat or promise to any person
acquainted with the facts of the case so as to dissuade
him from disclosing such facts to the Court or to the
Investigating Offcer. These reasons would commonly
apply to any person arrested on charge of a crime
whereas the 'grounds of arrest' would be required to
contain all such details in hand of the Investigating
Offcer which necessitated the arrest of the accused.
Simultaneously, the grounds of arrest informed in
writing must convey to the arrested accused all basic
facts on which he was being arrested so as to provide
him an opportunity of defending himself against
custodial remand and to seek bail. Thus, the 'grounds of
arrest' would invariably be personal to the accused and
cannot be equated with the 'reasons of arrest' which are
general in nature."
19. Considering the above explanation if we go through the
memorandum statement of Accused No. 1, the frst thing
which strikes us is that, though it is the memorandum
statement by Accused No.1, the signature of Accused No. 2 i.e.
the present petitioner has been obtained on it. After going
through the same, it does not contain the grounds of arrest for
which the petitioner has been arrested. It does not meet the
requirement of the provisions of various enactments as
referred hereinabove and it fails to meet the requirement of
the 'grounds of arrest', which has been explained in para 49 of
the judgment in case of Prabir Purkayastha (supra). It does
not contain the information in writing to the petitioner, of the
basic facts and the basis on which he is being arrested, so as to
provide him an opportunity of defending himself against the
custodial remand and seek bail. The memorandum
panchanama form, contains details about statement made by
the accused in presence of two witness while in custody,
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pursuant to which the procedure is undertaken by the
Detaining Authority, at the instance of Accused No. 1, whereby
he has taken the Detaining Authority to the place where
Accused No. 2 (Petitioner) was conducting his business. The
personal search of Accused No. 2 was taken, wherein 30 grams
of Mephedrone (MD) drug was seized. Therefore, the search
and seizure of the drug which was done by the Detaining
Authority pursuant to the memorandum panchanama, can by
no stretch of imagination be termed as a communication or
'grounds of arrest' to the petitioner as contemplated in law.
20. There are catena of decisions of the Hon'ble Apex Court
as well as this Court, whereby non-communication of grounds
of arrest, to the accused was held to be violative of
fundamental right of a person, guaranteed under Article 21
and 22 of the Constitution of India, as well as in breach of
safeguard provided under Section 50 of the Cr.P.C.
In the present case which is governed by the NDPS Act,
1985, Section 52(1) of the said Act also contemplates
communication of grounds of arrest to the accused, who is
being arrested under Sections 41, 42, 43 or 44 of the said Act.
Since the mandatory provisions of the Constitution as well as
the special enactment have not been adhered to by the
Detaining Authority, in our view, the arrest of the petitioner
and the subsequent remand orders cannot be sustained being
violative of the provisions of law as well as against the
authoritative pronouncements of the Hon'ble Apex Court as
well as this Court. Resultantly, we pass the following order:
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: ORDER :
(i) The Writ Petition is allowed.
(ii) It is declared that the arrest of the Petitioner
in connection with FIR No.131 of 2024 dated
24.03.2024, registered with Ravet Police Station is
illegal and in gross violation of the fundamental
rights of the Petitioner guaranteed under Articles
21 and 22 of the Constitution of India.
(iii) The subsequent remand order dated
27.03.2024 and all further subsequent orders
passed by the learned 6th Joint Judicial Magistrate
First Class, Vadgaon Maval, Pune are declared to be
null and void, as the same being in violation of
constitutional mandate as well as not in compliance
of Section 50 of the Cr.P.C.
(iv) Upon setting aside the remand order, the
Petitioner is entitled to be released from the
custody on furnishing bail bonds to the satisfaction
of the Trial Court.
(v) Rule is made absolute in the above terms.
(MANJUSHA DESHPANDE, J.) (NITIN W. SAMBRE, J.)
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