[Cites 12, Cited by 0]

Bombay High Court

Daniel Naimake @ Daniel Naymek vs State Of Maharashtra on 17 December, 2025

2025:BHC-AS:55779


                    Shivgan                                             909-BA-167-2025.doc



                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CRIMINAL APPELLATE JURISDICTION
                                     BAIL APPLICATION NO. 167 OF 2025
                    Daniel Naimake @ Daniel Naymek                               ...Applicant
                          Versus
                    State of Maharashtra                                         ...Respondent


                    Ms. Ashwinii Acharii, with Anish Pereira i/b Taraq Sayed, for
                          the Applicant.
                    Mr. Yogesh Y. Dabke, APP for the Respondent-State.


                                 CORAM:         DR. NEELA GOKHALE, J.

RESERVED ON: 16TH DECEMBER 2025 PRONOUNCED ON: 17th DECEMBER 2025 PC:-

1. By this Application, the Applicant seeks his enlargement

on bail in connection with FIR No. 0035 of 2024 dated 6 th

January 2024 registered with the Sakinaka Police Station,

Brihanmumbai City for the offences punishable under Sections

8(c) and 21(c) of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (for short 'NDPS Act') and Section 14 of

the Foreigners Act, 1946.

2. The facts of the case, in brief, are that:-

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2.1 On 6th January 2024, while the officials of the Sakinaka

Police Station were on patrolling duty, they found the

Applicant lurking suspiciously near the area of Hansa

Industries, Sakivihar Road, Kurla at around 2.45 a.m. After

following due process under the NDPS Act, the Applicant was

apprehended as he tried to run away when the Police tried to

stop him. He was given notice under Section 50 of the NDPS

Act and thereafter, he was searched. On his personal search,

the Applicant was found to be in possession of 88 capsules

containing a total quantity of 880 grams of Cocaine. The

panchanama was recorded; contraband was seized and

sealed; other compliances were followed and the FIR was

registered pursuant to which the Applicant was arrested on 6 th

January 2024.

3. The Applicant made an application seeking bail before

the N.D.P.S. Special Judge, City Civil & Sessions Court, Greater

Bombay. However, by order dated 21st October 2024, his bail

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application was rejected. Hence, the Applicant is before this

Court for the reliefs as prayed.

4. Ms. Ashwinii Acharii, learned counsel appearing for the

Applicant, submits that the 88 capsules were opened, mixed

and kept in a polythene bag. The entire substance was mixed,

which is in contravention of the called the Narcotic Drugs and

Psychotropic Substances (Seizure, Storage, Sampling and

Disposal) Rules, 2022 and various orders passed by this Court

as well as the Supreme Court. Most importantly, she submits

that panchanama regarding the seizure of contraband is dated

6th January 2024. Thereafter as per the procedure, samples

were drawn before the Magistrate pursuant to an application

made to the Magistrate for the said purpose. Accordingly,

samples were taken before the Magistrate on 25th January

2024 and Inventory Panchanama was recorded; samples were

sealed with the Magistrate's seal; they were brought back and

placed in the store room of the Police Station for safe custody.

Ms. Ashwinii Acharii submits that despite the samples being

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drawn before the Magistrate and sealed on 24th January 2024,

they were sent to the Forensic Science Laboratory ('FSL') for

analysis only on 2nd May 2024. Hence, the custody of the

samples of the contraband was retained by the Investigating

Officer in the custody of the Police Station for a period of four

months and few days. She has placed reliance on a recent

judgment of the Supreme Court in the matter of Rambabu v.

State of Rajasthan & Anr.1 wherein the Supreme Court dealt

with the matter involving similar objection and granted bail to

the Petitioner on grounds of long incarceration. Hence, she

submits that the Applicant be released on bail.

5. Mr. Yogesh Dabke, learned APP representing the State in

the matter, on the other hand, in reply to the objection raised

by Ms. Acharii, in respect of the custody of the contraband

being retained by the Investigating Officer for a period of four

months before sending it to the FSL, on instructions, submits

that the concerned Investigating Officer was busy in another

investigation and was out of town. Hence, the said samples

1 2025 SCC OnLine SC 1729

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were retained with the Police Station. There is no other

explanation offered for the said serious lapse in compliance

with the procedure as mandated by law as well as by the

Supreme Court. Mr. Dabke, learned APP, also relies on the

decision of the Supreme Court in the case of Bharat Aambale

v. the State of Chhattisgarh2 to buttress his submission that

mere non-compliance of the procedure under Section 52-A of

the NDPS Act or the Standing Orders/Rules will not be fatal to

the trial unless there are discrepancies in the physical

evidence rendering the prosecution's case doubtful. Mr. Dabke

also submits that there are no other contraventions of the

provisions of the NDPS Act. He thus, resists the Bail

Application.

6. Heard learned counsel appearing for the respective

parties and perused the record with their assistance.

7. Admittedly, 88 capsules containing 880 grams of

Cocaine were recovered from the Applicant. I have gone

2 2025 INSC 78

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through the Seizure Panchanama, the Inventory Panchanama

and the FSL Report indicating the date on which the samples

drawn before the Magistrate and kept under the seal of the

Magistrate, were forwarded to the FSL for analysis.

Undoubtedly, Ms. Acharii's submission has some substance

since a period of four months has elapsed after the samples

were taken before the Magistrate and sent to the forensics

after four months. However, a close scrutiny of the Inventory

Panchanama reveals that the samples drawn before the

Magistrate bears the seal of the Magistrate and were kept in

the custody of the Police before forwarding them to the FSL.

The FSL Report clearly records that the seal of the Magistrate

on the samples is intact. Hence, there is no justifiable reason

to believe that the samples were tampered before being sent

to the FSL. Although, the Investigating Officer ought to have

sent the samples for analysis to the FSL within a reasonable

period and his inaction in doing so is deprecated, that by

itself, does not take away the fact that the samples received by

the FSL had unbroken and untampered seal of the Magistrate.






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  Shivgan                                               909-BA-167-2025.doc

8. The fact remains that 880 grams of Cocaine in 88

capsules were seized from the Applicant. The Applicant is in

custody for the past two years. The maximum sentence for the

said offence is in between 10 and 20 years. Hence, in the facts

of the present case, it cannot be said that the Applicant has

suffered long incarceration.

9. I have gone through the decision of the Supreme Court

in the case of Bharat Aambale (Supra). Paragraph 50 (V),

(VI), (VII) read thus;

"50. ....(V) Mere non-compliance of the procedure under Section 52A or the Standing Order(s) / Rules thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution's case doubtful, which may not have been there had such compliance been done. Courts should take a holistic and cumulative view of the discrepancies that may exist in the evidence adduced by theprosecution and appreciate the same more carefully keeping in mind the procedural lapses.

(VI) If the other material on record adduced by the prosecution, oral or documentary inspires confidence and satisfies the court as regards the recovery as-well as conscious possession of the contraband from the accused

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persons, then even in such cases, the courts can without hesitation proceed to hold the accused guilty notwithstanding any procedural defect in terms of Section 52A of the NDPS Act.

(VII) Non-compliance or delayed compliance of the said provision or rules thereunder may lead the court to drawing an adverse inference against the prosecution, however no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case."

In view of the aforesaid position of law contained in the said

decision, the lapse on the part of the Investigating Officer in

retaining the sample in custody for 4 months, shall not deter

the Court in concluding conscious possession of the

contraband with the Applicant, since the FSL report records

that the laboratory received the sample with the Magistrate's

seal intact.

10. Another significant aspect in the present matter is that

the Applicant is a foreigner. Admittedly, his passport is expired

and he does not have a valid visa. Hence, he is also charged

with the offence under the Foreigners Act. The apprehension

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