[Cites 12, Cited by 0]
Bombay High Court
Rohit Dilip Gupta vs State Of Maharashtra on 6 April, 2026
2026:BHC-AS:16574
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VASANT IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ANANDRAO CRIMINAL APPELLATE JURISDICTION
IDHOL
CRIMINAL BAIL APPLICATION NO. 1101 OF 2025
Digitally signed by
VASANT
ANANDRAO
IDHOL ROHIT DILIP GUPTA
Date: 2026.04.07 VERSUS
19:58:30 +0530
STATE OF MAHARASHTRA
Mr. N. S. Bangar, Advocate for the Applicant
Mr. A. S. Gawai, APP for Respondent/State
CORAM : R. M. JOSHI, J.
RESERVED ON :30TH MARCH, 2026
PRONOUNCED ON :6TH APRIL, 2026
1. Applicant seeks regular bail in connection with CR No. 2/2024
registered with ANC Kandiwali Unit, Mumbai for the offences punishable
under Sections 8(c), 20(c), 29 of Narcotic Drugs and Psychotropic Substances
Act, 1985 (for short 'the Act').
2. It is the case of the prosecution in short that on 02.01.2024,
while doing patrolling duty, the officer and patrolling party came across two
persons in suspicious manner near Santhani Hospital at Sodawala Lane. It
was found that they were waiting for someone. On suspicion, they were
apprehended. After compliance of Section 50 of the NDPS Act, a search was
conducted. From Accused No. 1, 2.5 Kg and from Accused No. 2, 460 gm of
Charas was found. The samples were drawn under Section 52A of the Act
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and the same were confirmed to CFSL Kalina. During Chemical Examination,
the said samples were found to be the Narcotic Drug, Charas. On completion
of investigation, charge-sheet came to be filed.
3. Applicant contends that there is a violation of Section 42(1) and
42(2) of the Act as the information/knowledge has not been recorded in
writing and not communicated to the superior officer in 72 hours. It is also
claimed that this is a case of non-compliance of Section 52A of the Act as the
samples collected at the time of seizure itself and not taken before the
Magistrate. It is claimed that the grounds of arrest are not communicated /
furnished to the applicant in writing and as such, there is non-compliance of
the order/judgment of the Hon'ble Supreme Court. It is also contended that if
the weight of the bag is excluded, the contraband cannot be termed as
commercial quantity in order to apply provisions of Section 37 of the Act.
4. Learned Counsel for the applicant submits that perusal of the
charge-sheet raises doubt about the seizure. It is his contention that the
panchanama records signatures of panchas twice on the labels i.e. four in all
however, the labels indicate only two signatures. This according to him
creates doubt with regard to the genuineness of the panchanama and
consequent seizure. He further submits that it was mandatory for the officer
to provide grounds of arrest to the applicant which are not communicated
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herein this case. It is also claimed that the relatives and friends are also
required to be communicated said ground of arrest which has not been done
here in this case. In support of his submissions, he placed reliance on
following judgments/orders :-
(i) Mimit Ajit Bhuta Versus The State of Maharashtra through DC CID
in Criminal Writ Petition No. 5552 of 2025, decided on 10.03.2026
(ii) Hanuman Choudhary Vs. The State of Maharashtra in Criminal Writ
Petition (Stamp) No. 17755 of 2024, decided on 25.10.2024.
5. Learned APP submits that this is a case wherein Section 50 has
been duly complied with. In respect of non-compliance of Section 52A of the
Act, it is contended that it is a triable issue and does not become a ground for
grant of bail. To support this submission reliance is placed on the judgment of
the Hon'ble Supreme Court in case of Narcotics Control Bureau Vs. Kashif,
MANU/SC/1384/2024. With regard to the grounds of arrest, it is argued that
the grounds of arrest are to be informed and not communicated as
contemplated by the Cr.P.C. Reference is made to Column No. 8 of the arrest
panchanama which indicates that grounds of arrest were informed to the
applicant. It is submitted that from the time of first remand till filing of the
application for bail, applicant was duly represented by a lawyer and no
grievance has been made with regard to non-communication of the grounds
of arrest. It is contended that no prejudice is shown to have been caused to
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the applicant on that count. It is further argued that having regard to the
embargo created by Section 37 for grant of bail, this is not the case for
enlargement of the applicant on bail. He placed reliance on judgment of
Hon'ble Supreme Court in case of State of State of Karnataka Versus Sri
Darshan Etc., 2025 SCC OnLine SC 1702.
6. In rejoinder/response to the learned APP's submission, reference
is made by learned counsel for applicant to the order passed by the
Coordinate Bench in case of Mimit Ajit Bhuta Versus The State of Maharashtra
through DC CID (supra) wherein the Supreme Court judgment in case of
State of Karnataka Versus Sri Darshan Etc. (supra) is duly taken into
consideration and in spite of the said judgment bail came to be granted to
accused.
7. Prima facie perusal of the record i.e. charge-sheet indicates that
this is not a case wherein any specific information was received with regard to
the applicant. Under general orders of preventing the sale and purchase of
narcotic drugs, patrolling was done by ANC unit at Kandiwali. Two persons
were found in suspicious circumstances near Santhani Hospital at Sodawala
Lane, Boriwali (West). As suspicion was raised against them, panch witnesses
were called. In presence of panch witnesses, notice was given to those persons
under Section 50 of the Act apprising them of their right to seek search in
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presence of Gazetted Officer or a Magistrate. A written notices to that effect
was also given. The said persons recorded endorsement confirming that they
were informed about their right of such search. They did not seek search
before the Gazetted Officer or a Magistrate. The empowered officer therefore,
conducted search of the said persons in presence of panch witnesses. From
their possession charas weighing 2 kg and more was seized. The panchnama
was prepared. Thus, prima facie there is compliance of Section 50 of the Act.
Since, this is not the case of prior information, question of reducing the same
in writing as contemplated by Section 42(1) of the Act does not arise. It is not
the case that information of action has not been given to the immediate
superior.
8. Insofar as compliance of Section 52A of the Act is concerned,
there is sufficient material on record to indicate that the seized contraband
was placed before the Magistrate along with the inventory note and
Magistrate has certified the same in accordance with Section 52A of the Act.
9. It is sought to be argued on behalf of the applicant that there is
inconsistency in the panchnama recording seizure of the contraband articles.
It is contended that there is mention in the panchnama about panch witness
signing the labels twice. Thus, it is argued that there must appear four
signatures of panchas on labels, however, the photographs indicate only two
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signatures of panchas. This was responded by the learned APP indicating that
the possibility of typographical error being committed while recording
panchanama cannot be ruled out.
10. At this stage, the question before this Court is to ascertain as to
whether the panchanama was done in the presence of panch witnesses so also
the seizure was done in accordance with the provisions of Act. Needless to say
that in respect of search and seizure, the provisions of Cr.P.C. which are
contrary to the provisions of the Act would have no application. In the instant
case, there is prima facie material on record to indicate that the seizure
articles were sealed in a packet and labels were affixed thereon under the
signatures of panchas. Perusal of the photograph of said envelope indicates
signatures of panchas on it. Needless to say that as per the practice followed
of conducting of panchanama and seizure of article, there appears no
reason/need for obtaining more than one signature of each panch on the
same. This Court, therefore, finds no reason to discard the explanation sought
to be given by learned APP that it could be a case of typographical error in the
panchanama. It is therefore, prima facie held that it is sought to be raised by
the applicant does not go to the root of the matter and in any case would not
vitiate the trial. This observation, however, is made on prima facie
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consideration of material on record and the same shall not bind parties or trial
court during trial.
11. Insofar as the information of the ground of arrest is concerned,
the reliance is sought to be placed on the judgments of the Hon'ble Supreme
Court in case of Vihaan Kumar Vs. State of Harayana, 2025 SCC OnLine SC
269, Prabir Purkayastha Vs. State (NCT of Delhi), (2024) 8 SCC 254. A
reference is also made to the judgment of Division Bench of this Court in case
of Hanuman Choudhary Vs. The State of Maharashtra in Criminal Writ
Petition (Stamp) No. 17755 of 2024, decided on 25.10.2024, wherein it is
held that non communication of grounds of arrest to the accused is violation
of fundamental right and statutory right of the applicant.
12. In this regard however, it is pertinent to note the Hon'ble
Supreme Court in case of State of Karnataka Versus Sri Darshan Etc. (supra)
which after considering all previous judgments on issue it is held as under:
"20.1.7. In the present case, the arrest memos and remand records
clearly reflect that the respondents were aware of the reasons for
their arrest. They were legally (2024) 7 SCC 576 represented from
the outset and applied for bail shortly after arrest, evidencing an
immediate and informed understanding of the accusations. No
material has been placed on record to establish that any prejudice
was caused due to the alleged procedural lapse. In the absence of
demonstrable prejudice, such as irregularity is, at best, a curable
defect and cannot, by itself, warrant release on bail. As reiterated
above, the High Court treated it as a determinative factor while
overlooking the gravity of the charge under Section 302 IPC and the
existence of a prima facie case. Its reliance on Pankaj Bansal and
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Prabir Purkayastha is misplaced, as those decisions turned on
materially different facts and statutory contexts. The approach
adopted here is inconsistent with the settled principle that
procedural lapses in furnishing grounds of arrest, absent prejudice,
do not ipso facto render custody illegal or entitle the accused to
bail."
13. After the passing of the order by the Division Bench of this Court,
the Hon'ble Supreme Court has held that, unless prejudice is shown, even in
case of lapses in providing of the grounds of arrest would not ipso facto entitle
an accused to get bail.
14. Learned counsel for the applicant submits that Co-ordinate Bench
of this Court in case of Mimit Ajit Bhuta Versus The State of Maharashtra
through DC CID in Criminal Writ Petition No. 5552 of 2025, decided on
10.03.2026, has granted bail to the accused therein.
15. A perusal of the judgment in case of Mimit Ajit Bhuta Versus The
State of Maharashtra through DC CID (supra) shows that the judgment in
case of State of Karnataka Versus Sri Darshan Etc. (supra) was taken into
consideration however, it was held that in the facts and circumstances of the
said case, the same does not assist the case of prosecution. The observations
made in the said judgment more particularly in paragraph No. 16 indicates
that in the said case, the arrest of the petitioners was done without issuing
notice under Section 35(3) of BNSS, though it was warranted. Similarly, in
the said case as observed in paragraph No.26, common grounds of arrest were
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furnished to both petitioners and that they could not after satisfactory
explanation of allegation. Thus, it cannot be said that the said judgment came
to be passed by distinguishing the judgment of Hon'ble Supreme Court in case
of State of Karnataka Versus Sri Darshan Etc. (supra), but it was passed
considering difference in facts of both cases. Most importantly the judgment
in case of Mimit Ajit Bhuta Versus The State of Maharashtra through DC CID
(supra) does not pertains to case under NDPS Act, whereas there are strict
provisions for grant of bail under Section 37 of the NDPS Act, in case of
commercial quantity of the contraband is seized from accused.
16. It would not be out of context to mention that the enactment of
NDPS Act is aimed at taking effective steps against the sale and purchase of
narcotic drugs and in trafficking. The legislation thought it necessary and
appropriate to make provisions in respect of various procedural aspects of
search, seizure, arrest etc. Similarly, contrary to the general principles
applicable to the criminal trial special provisions are made such as Section 35,
which provides for presumption of culpable mental state. Different provisions
on made about the disposal of the seized contraband during pendency of trial.
Moreover, Section 37 creates an embargo on the Court to grant bail unless it
has reason to believe that accused is not guilty of offence and that he is not
likely to commit same offence if enlarged on bail. Any lapse in providing
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grounds of arrest therefrom would not enable the court to record that
applicant is not guilty of offence much less he would not commit similar
offence if granted bail.
17. In view of peculiarity of provisions of NDPS Act, this Court has no
hesitation to hold by following the judgment of the Hon'ble Supreme Court in
case of State of Karnataka Versus Sri Darshan Etc. (supra) that in absence of
any prejudice being shown by the applicant to have been caused to him by
non informing of grounds of arrest and also in view of the fact that applicant
was duly represented by lawyer during remand as well as in the bail
application before the trial Court, he is not entitled to enlarge on bail., Hence,
there is no merit in the application, consequently application stands
dismissed.
(R. M. JOSHI, J.)
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