[Cites 13, Cited by 0]

Bombay High Court

Sherali Hafiz Khan vs State Of Maharashtra on 24 March, 2026

  2026:BHC-AS:13922


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                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CRIMINAL APPELLATE JURISDICTION
VASANT
ANANDRAO
IDHOL                        CRIMINAL BAIL APPLICATION NO.4758 OF 2024

Digitally signed
by VASANT          Sherali Hafiz Khan                           ...Applicant
ANANDRAO
IDHOL                        V/s.
Date:
2026.03.24         The State of Maharashtra                     ...Respondents
16:07:57 +0530



                    Mr.Dilip Mishra with Mr.Ajay Bhise and Mr.Tejas V. Dhotre i/b
                     Tarsem Gabbi for the Applicant.

                    Mrs.Shilpa Gajare Dhumal, APP for the State - Respondent.
                    Mr.Mahesh Anjanwad, PSI, Shivajinagar Police Station,
                     Mumbai is present in Court.

                                  CORAM : R.M. JOSHI, J.
                                  DATE OF RESERVE : 18TH MARCH, 2026.
                                  DATE OF PRONOUNCEMENT : 24TH MARCH, 2026.

                        ORAL ORDER:-

1. This application for regular bail has been filed in

connection with C.R. No.246/2024 registered with Shivaji Nagar

Police Station, Mumbai for offence punishable under Sections

8(c) & 22(c) of the Narcotic Drug and Psychotropic Substances

Act, 1985 (for short 'the Act')

2. It is the case of the prosecution that on 23.03.2024

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while on patrolling duty, the Officers of the Shivaji Nagar Police

Station found Applicant in suspicious condition. On noticing

police he ran to the premises. He was followed. Upon his search,

he was found in possession of 15 grams of mephedrone (for

short 'MD'). On enquiry with the Applicant, it was revealed that

he had kept remaining quantity of MD in his house. During

house search, Officers recovered 445 grams of MD. Applicant

was taken into custody and was arrested on the same day.

Pursuant to the filing of the FIR, investigation was done and on

conclusion thereof, charge-sheet came to be filed.

3. Learned Counsel for the Applicant submits that there is

violation of Section 50 of the Act and there is no specific

endorsement of the Applicant on the notice under Section 50 of

the Act declining to be searched before the Gazetted Officer or a

Magistrate as mandated by the Hon'ble Supreme Court in the

judgment of Ranjan Kumar Chadha vs. State of Himachal

Pradesh, 2024 All SCR (Cri) 127. This judgment came to be

delivered on 06.10.2023 and as per the observations made in

pargaraph 63 of the said judgment, it is imperative on the part of

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the Empowered Officer to seek writing duly signed from the

person who is searched in the presence of Empowered Officer as

well as other officials of the squad that he is apprised of his right

before the Gazetted Officer or a Magistrate in accordance with

Section 50 of the Act and further he declines on his own free will

and volition that he would not like to exercise such right. It is

submitted that for non-compliance of said order of the Hon'ble

Supreme Court, this is a fit case for accepting failure of

compliance of mandatory provision of Section 50 of the Act. He

further submits that here in this case, there is non-compliance of

Section 42 of the Act as Officers when found Applicant allegedly

running to the enclosed premises, they formed an

opinion/reasonable belief that he had concealed contraband. In

such circumstances, it was obligatory for the Officer concerned

to record the same and at least to record it at later point of time

and communicate the same to the Superior Officer within period

of 72 hours. It is submitted that non-compliance of Section 42 of

the Act as held by the Hon'ble Supreme Court in case of Sarija

Banu (A) Janarthani alias Janani and Another vs. State through

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Inspector of Police, 2004 AIR (SCW) 7488, it would entail in

considering the application for grant of bail. He further

submitted that 445 grams of MD was not recovered from the

Applicant's possession and the said is allegedly recovered from

the steel tray kept in the fridge in the premises. It is argued that

as per the case of prosecution, wife of the Applicant was present

in the house, however, neither her statement is recorded nor her

signature is obtained on panchnama. It is further submitted that

there is no evidence in order to show that the said premises

belong to the Applicant in order to attribute the said recovery to

him. Finally, it is argued that habitual panch are used in the case

which makes the case of prosecution unreliable. To support this

submission, reliance is placed on order of Coordinate Bench of

this Court in Bail Application No. 4047/2023. It is further

claimed that there is non-compliance of Section 52(A) of the Act

as the certificate issued by the Magistrate is not as per the Form

5 of the NDPS Rules, 2022. To support this submission, reference

is made to the judgment in case of Chandrabhan Janardan Yadav

Vs. State of Maharashtra passed in Criminal Bail Application No.

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2254/2024. By referring to CA report, it is argued that the

white/yellow color crystal powder as allegedly recovered from

the Applicant turned out to be a brown sticky lump with crystals

in the CA report. This, according to him, creates doubt about the

seizure at the instance of the Applicant and creates the possibility

of tampering of the evidence. On the amongst other contentions

enlargement of applicant on bail is sought.

4. Learned APP opposed the said submissions firstly by

pointing out that herein this case 445 grams of MD has been

recovered at the instance of Applicant. It is further argued that

this is not the case wherein any prior information was received

by the concerned Officer with a regard to the Applicant having in

possession of the contraband articles. It is submitted that since

suspicion was raised and as the Applicant started running, it

became essential on the part of the Officer concerned to follow

the Applicant and take search, so also to search premises in

which he was found. It is pointed out that there is notice given

under Section 50 of the Act and the right of the Applicant to be

searched in presence of Gazetted Officer or a Magistrate has

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been duly communicated and since it was denied by the

Applicant of getting searched before the said Authorities, there is

no infirmity in the compliance of Section 50 of the Act. It is

further argued that there is no substance in the contention of the

Applicant with regard to entering the house after sunset as

having regard to the situation faced, there was no other option

for the Officers but to follow the Applicant and consequently

enter the said premises. It is argued that said facts are self-

explanatory. With regard to alleged allegation of panch witness

being habitual, it is contended that it is a matter of trial wherein

Trial Court is required to consider the authenticity of the

testimony of said witness. With regard to seizure of 445 grams

MD from the premises, it is contended that panchnama of seizure

clearly indicates that Applicant went into said house wherein

recovery has been done. In so far as change in the colour of the

seized contraband, reliance is placed on the opinion of CA dated

19.12.2025 indicating that on lapse of time and due to

atmospheric influences, there is possibility of change in the

colour of narcotic drug. With regard to non-compliance of

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directions in para 63 of the judgement in case of Ranjan Kumar

Chadha Vs State of Himachal Pradesh, 2023 SCC OnLine SC

1262, it is submitted that there cannot be compulsion on the

accused to write anything in particular as per dictate of police/

Empowered Officer. It is contended that consequence of the

same would be a matter to be considered at the stage of trial. It

is thus submitted that having regard to these facts, there is no

substance in the bail application and the same be rejected.

5. There cannot be any dispute made with regard to the

fact that Section 50 of the Act is mandatory in nature and it is

obligation of the concerned Officer or empowered Officer to

apprise the person who is to be searched of his right to get

searched in presence of Gazetted Officer or a Magistrate. The

Hon'ble Supreme Court in case of Ranjan Kumar Chadha (supra)

while referring to with the judgments of Constitutional Bench

has held that before conducting search, it must be communicated

in clear terms though it need not be in writing and is permissible

to convey orally that suspect has right of being searched in

presence of Gazetted Officer or a Magistrate. Here in this case

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apart from mention in the search panchnama, there is evidence

of such communication being made in writing to the Applicant.

In so far as non-compliance of direction issued in Ranjan Kumar

Chadha (supra) as reflected in paragraph 63 thereof about

obtaining specific writing from person who is to be searched, this

court finds substance in the contention of prosecution that it may

not be possible to compel an accused/ person searched to write

down remark as per dictate of police/ Empowered Offficer and in

any case in view of settled position of law that the

communication of right to be searched in presence of Gazetted

Officer or Magistrate orally, at this stage this would not become

a ground to grant bail as it does not go to the root of the matter

but it would be an issue while determining acceptance of defence

of the accused during trial. In considered view of this court, it

would not become a reason for grant of bail.

6. In so far as compliance of Section 42 of the Act is

concerned, it is appearing prima facie from the record that this is

not the case of prior information to the concerned Officer with

regard to the Applicant carrying narcotic substance. It is on the

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spot when the Applicant was found in suspicious manner and ran

towards the premises, he was followed by the Officers and it is at

this stage after giving him notice under Section 50 of the Act, his

personal search was taken. During his personal search, 15 grams

of MD was found. The premises to which Applicant ran and

found, there was further seizure of 445 grams of MD from it. On

the face of it, said evidence indicates that Applicant had nexu

with the premises from which the commercial quantity of MD is

seized. In case there is a charge against the owner of the

premises storing the contraband u/s 25 of the Act, the

investigation on to the ownership of premises would become

absolutely essential. Since no such charge is made, it cannot lead

to rejecting case of prosecution. It is a matter of trial and it is for

the Trial Court to determine objections/defences raised by the

accused with regard to ownership of the premises, non

obtainment of the signature of the wife of the Applicant so also

the issue as to the acceptability of the evidence of panch witness.

Having regard to these facts, the judgment in case of Sarija Banu

(supra) would not help the Applicant in any manner.

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7. In case of Abdul Shaikh (supra), Coordinate Bench of

this Court while considering the objection with regard to stock

panch has held that the Court cannot simply brush aside the fact

that the panch therein acted as panch witness in so many cases.

It is further observed that if there are concomitant

circumstances, the fact premier agency employees the same

panch witness in number of cases may impair search and seizure

in given case. It is thus clear from the said order that no law has

been laid down that in case of stock panch being used, it would

lead to grant of bail. Needless to say that it is not open for this

court to decide veracity or otherwise of evidence to be led before

trial court. Any observations made in this regard would amount

to influencing the trial.

8. With regard to non compliance of Section 52(A) of the

Act, reliance came to be placed on the order of Coordinate Bench

of this Court in case of Chandrabhan Yadav (supra) in order to

argue that non compliance can vitiate the statutory procedure

and lead to the grant of bail even under the stringent provisions

of Section 37 of the Act. With utmost respect to said view, this

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Court finds that in view of judgment of Hon'ble Supreme Court

in case of NCB Vs Kashif applicant cannot take benefit of the

same. In the said case Hon'ble Supreme Court while dealing with

the issue regarding the non-compliance of Section 52A of the

said Act, has held that introduction of Section 52A, which was

followed by standing order No. 1 of 1989 came to be issued by

the Central Government as it was considered necessary and

expedient to determine the manner in which narcotic drugs and

psychotropic substances should be disposed of after their seizure,

having regard to their hazardous nature, vulnerability to theft,

substitution, and constraint of proper storage space. It is held

that, as per the well settled rule of interpretation, the Section

Heading or Marginal note can be relied upon to clear any doubt

or ambiguity in the interpretation of any provision and to discern

the legislative intent. The Section Heading constitutes an

important part of the Act itself, and may be read not only as

explaining the provisions of the section, but it also affords a

better key to the constructions of the provisions of the section

which follows than might be afforded by a mere preamble. It is

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then held that Section 52A was inserted only for the purpose of

early disposal of the seized contraband drugs and substance,

considering their hazardous nature, etc. It is further held that

there cannot be any two opinions on the issue about early

disposal of the contraband drugs and substances, particularly

when it was inserted to implement provisions of international

conventions on narcotic drugs and psychotropic substances.

9. By referring to Section 54 of the Act, it is observed that

as per Section 54 of the said Act, the Courts are entitled to

presume, unless and until contrary is proved, that the accused

had committed, an offence under the Act in respect of any

narcotic drug or psychotropic substance, for possession of which

he failed to account satisfactorily. Therefore, unless such

presumption is rebutted by the accused during the course of

trial, there would be a prima facie presumption that the accused

had committed the offence under the Act, if he is found to have

possessed the contraband drug and substance, and if he fails to

account satisfactorily, as contemplated in the said provision of

Section 54. An anomalous situation would arise if a non-

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compliance or delayed compliance of Section 52A is held to be

vitiate the trial or entitle the accused to be released on bail.

though he is found to have possessed the contraband substance,

and even if the statutory presumption is not rebutted by him.

Such could not be the intention of the legislature.

10. The Hon'ble Supreme Court thereafter summarised its

discussion as under :-

" (i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object, and purpose of the Act: as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose, and Preamble of the Act.

(ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act.

(iii) The purpose of insertion of Section 52A, laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances.

(iv) Sub-section (2) of Section 52A lays down the

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procedure as contemplated in sub-section (1) thereof, any any lapse or delayed compliance thereof would be merely a procedural irregularity, which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone.

(v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused.

(vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act."

11. As far as the submissions of the Counsel for the

Applicant relying upon the CA report indicating change in the

colour of the contraband articles as reflected in the report is

concerned, prima facie there is material to indicate that the

seized articles in sealed condition were sent to CA for

examination. This, therefore, rules out the possibility of

tampering at least at this stage. Moreover, there is opinion given

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by the CA with regard to change in colour of the contraband

owing to the atmospheric effects.

12. Having regard to special provision of Section 37 of the

Act, unless there is apparent non-compliance of mandatory