High Court · 2024

Legal Reasoning

1 BA-109,914-24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADBAIL APPLICATION NO.109 OF 20241.Azim s/o. Jafar Qureshi,Age 32 years, Occu. Business,R/o. Sanjay Nagar, Kopargaon,District Ahmednagar2.Wajid s/o. Kalim Qureshi,Age 32 years, Occu. Business,R/o. As above..ApplicantsVersusState of MaharashtraThrough Kopargaon City Police Station,District Ahmednagar..RespondentMs. Shilpa Aurangabadkar, Advocate holding for Mr. Satej S. Jadhav, Advocate for Applicants;Mr. S. B. Narwade, A.P.P. for Respondent...WITHBAIL APPLICATION NO.914 OF 20241.Dinesh s/o Bhawarlal Chaudhary (Jat),Age 21 years, Occu. Labourer,R/o. Gangapur, Taluka Shahada,District Bhilwada, State Rajasthan2.Sharukh Khan Jakir Khan Pathan,Age 21 years, Occu. Labour/Driver,R/o. Bhilwada City, Taluka BhilwadaState Rajasthan..ApplicantsVersusState of MaharashtraThrough Police Inspector,Anand Nagar Police Station,Osmanabad, District Osmanabad..Respondent 2 BA-109,914-24.odtMs. Sheetal V. Salunke, Advocate for Applicants;Ms. D. S. Jape, A.P.P. for RespondentCORAM :S. G. MEHARE, J.RESERVED ON : 20-07-2024PRONOUNCED ON: 14-08-2024PER COURT :-1.Heard the learned counsel for the applicants and the learnedA.P.P. for the respondent.2.In Bail Application No.109 of 2024, applicants – (1) Azim s/oJafar Qureshi and (2) Wajid s/o Kalim Qureshi seek bail inC.R.No.503 of 2023 registered with Kopargaon City Police Station,District Ahmednagar, for the offences punishable under Sections8(c), 20(c) and 29 of the Narcotic Drugs and PsychotropicSubstances Act, 1985 (for short, “NDPS Act”).3.In Bail Application No.914 of 2024, applicants – (1) Dineshs/o Bhawarlal Chaudhary (Jat), (2) Sharukh Khan Jakir Khan Pathanseek bail in C.R.No.74 of 2023 registered with Anand Nagar PoliceStation, District Osmanabad, for the offences punishable underSections 20(b)(ii), 20(b), 8(c) of the NDPS Act.4.The prosecution has a case against applicants Azim andWajid that Police got a secret information that the accused werecarrying contraband on the bike for sale. Police formed a raiding 3 BA-109,914-24.odtteam, and thereafter, the trap was laid at about 19.35 p.m. nearSai Corner, Ahmednagar, and found three persons coming on abike. They intercepted them. The accused tried to flee away,however, the police succeeded in apprehending them. Theapplicants told the police their names. Then, the notices underSection 50(1) of the the Narcotics Drugs and PsychotropicSubstances Act (“NDPS Act”, for short) were served upon them.Their physical search and search of bags were taken. The policefound green leafy and sticky substance in their bags weighing 5 kgeach. The total quantity recovered was 10 kgs. The policeextracted samples from two bags on the spot itself and preparedrecovery panchnama.5.The prosecution has a case that there was a vehicularaccident in front of Shingoli Rest House. Therefore, a Constablewas deputed there. He inspected Tata make vehicle. Dinesh andShahrukh Khan were the possessors of that vehicle. The policefound contraband like Ganja in the dickey. It was 130 Kilos and561 Grams. They were immediately taken into custody. Policesearched the vehicle. Before the search, a notice under Section 50of the NDPS Act was served upon them. 6.Applicants Azim and Wajid seek bail on the grounds that theyhave been falsely implicated in the crime. Sections 42, 50 and 52-A of the NDPS Act have not been complied with. Compliance with 4 BA-109,914-24.odtSection 50 of the NDPS Act is mandatory. Extracting the samplesfrom the spot of the incident soon after the seizure isimpermissible under Section 52A of the NDPS Act. Rule 8 of theNarcotic Drugs and Psychotropic Substances (Seizure, Storage,Sampling and Disposal) Rules, 2022 (“Rules 2022”, for short) hasalso been violated. The flowering tops were not segregated fromleaves, seeds and stalks. Reading the definition of '‘ganja'’ underSection 2(iii)(b) of the NDPS Act, it has been argued that leaves,seeds and stalks ought to have been excluded while weighingseized Ganja. If it is not separated and weighed with leaves, seedsand stalks, the quantity could not be said to be commercial. Theapplicants had no mens rea.7.In the case of applicants - Dinesh and Shahrukh Khan, bailhas been claimed almost on similar grounds as in the above case.8.The learned counsels for the applicants relied on thefollowing cases:-(1)Union of India vs. Mohanlal and another, AIR OnLine2016 SC 606;(2)Mangilal Vs. State of Madhya Pradesh, CriminalAppeal No.1651 of 2023, decided on 12.07.2023 ;(3)Subhash Baburao Patil vs. State of Maharashtra, BailApplication No.1363 of 2023 of this Bench, dated24.08.2023. 5 BA-109,914-24.odt(4)Ibrahim Khawaja Miya Sayyed @ Raju vs. State ofMaharashtra, Bombay High Court at Principal Seat,B.A.No.1259 of 2022 dated 17.03.2023.9.Per contra, the learned A.P.P., opposing the applications,argued that compliance with Section 50 of the NDPS Act isessential only when the physical search is required. Other than aphysical search, compliance with Section 50 of the NDPS Act isnot required. In a case where the police officer suddenly found theaccused carrying contraband, Section 42(1) of the NDPS Act is notmandatory.Section 42 of the NDPS Act will invoke if the policeofficer or concerned authority makes the search upon priorinformation. When such information or intimation comes to thenotice of the Investigating Officer in the course of regularpatrolling or an investigation of some other offence, it is notnecessary to follow in all cases the conditions of Section 50 of theNDPS Act. 10. A question of the applicability of Section 50 of the Act fallsfor consideration. 11 In. Sk. Raju Alias Abdul Haque alias Jagga v State ofWest Bengal (2018) 9 SCC 708, the ratio was that if the searchis of both bags as well as the person of the accused, Section 50 ofthe NDPS Act would be attracted. 6 BA-109,914-24.odt12.In Ranjan Kumar Chada v State of Himachal Pradesh2022 Live Law (SC) 856 relied on by the learned A.P.P., thequestion when notice under Section 50 of the Act was elaboratedby referring to the earlier judgments, and it has been observed inparagraph 121 that “We do not propose to say any further asregards Sk. Raju (supra) as well as Baljindar Singh (supra). Weadhere to the principles of law as explained by the ConstitutionalBench in State of Punjab vs. Baldev Singh, (1996) 6 SCC 172and the Larger Bench answering the reference in State ofHimachal Pradesh vs. Pavan Kumar, AIR 2005 SC 2265. 13.In Ranjan Kumar (supra), the facts were that the bag whichthe accused was carrying along with him was also searched withhis personal search. However, the High Court of Himachal Pradesh,relying on the case of Pavan Kumar (supra) held that Section 50of the NDPS Act is not at all applicable and the recovery of thecontraband substance was not made as a result of the personalsearch of the accused but on account of search from the bag.Therefore, the police were not required to comply with Section 50of the NDPS Act. 14.The Hon'ble Constitutional Bench in State of Punjab VBaldeo Singh (1999) 6 SCC 172, held that Section 50 wouldcome into play only in cases where a search of a person is 7 BA-109,914-24.odtconducted under the NDPS Act as contemplated under Section 42.Where there is no search of a person under the NDPS Act, Section50 would have no application. However, where in the course of ageneral search being conducted under Cr.P.C.1973 in connectionwith any offence or suspected offence except one under the NDPSAct, there is recovery of any contraband, the provisions of theNDPS Act shall forthwith apply in such cases also [Paragraph 44 ofRanjan Kumar (supra)].15. Vijaysinh Chandubha Jadeja v State of Punjab (2011)SCC 609 case was referred to the Full Bench since there was adiversion of the opinion of the Supreme Court in JosephFernandes vs. State of Goa, (2000) 1 SCC 760, PrabhaShankar Dube vs. State of M.P. (2004) 2 SCC 56 on hand andKrishna Kanwar vs. State of Rajasthan, (2004) 2 SCC 608,on the other, with regard to the dictum laid down by ConstitutionalBench of the Hon’ble Supreme Court, in State of Punjab vs.Baldev Singh (supra), particularly regarding the question,whether before conducting the search the police officer concernedis merely required to ask the suspect whether he would like to beproduced before the Magistrate or Gazetted Officer for the purposeof search or is the suspect required to be made aware of theexistence of the right in that behalf under law. 8 BA-109,914-24.odt16.In paragraph No.4 of Vijaysinh (supra) it has been observedthat the cases have come up before the Court for a limitedpurpose of clarification as to the interpretation of Section 50 of theNDPS Act by the Constitutional Bench in Baldev Singh (supra). 17. The question before the Court was whether Section 50 ofNDPS Act casts a duty on the empowered officer to “inform” thesuspect of his right to be searched in the presence of gazettedofficer or a Magistrate, if he so desires or whether a mere enquiryby the said officer as to whether the suspect would like to besearched in the presence of a Magistrate or a gazetted officer canbe said to be due compliance with the mandate of Section 50?18.Answering the referred issue, it has been held, it isimperative on the part of the empowered officer to apprise theperson intended to be searched of his right under Section 50 of theNDPS Act to be searched before a gazetted officer or a Magistrate.It is not necessary that information required to be given underSection 50 should be in a prescribed form or in writing, but it ismandatory that the suspect is made aware of the existence of hisright to be searched before a gazetted officer or a Magistrate if sorequired by him and this mandatory provision requires strictcompliance. Thereafter, the suspect may or may not choose toexercise the right provided to him under the said provision. 9 BA-109,914-24.odt19.It has been further observed that failure to “inform” thesuspect about the existence of his said right would cause prejudiceto him. Failure to comply with Section 50 would render therecovery of the illicit article from the suspect and vitiate theconviction if the same is recorded only on the basis of recovery ofthe illicit article from the person of the accused during suchsearch. Any other interpretation of the provision would make thevaluable right conferred on the suspect illusory and farce. Theview of Joseph Fernandes (supra) was overruled.20.In Ranjan Kumar (supra), the case of Pavan Kumar (supra)was considered. The said case was referred to the Larger benchsince the bench had differed on the term “ person” used in Section50 of the NDPS Act. In Ranjan Kumar (Supra) the answer to thereferred issue was discussed. Paragraph No.10 of Pawan Kumar(supra) was reproduced, in which it has been observed that havingregard to the scheme of the Act and the context in which it hasbeen used in the Section, the “person” naturally means a humanbeing or a living individual unit and not an artificial person. Theword has been used in a broad common sense manner in which anormal human being will move about in a civilized society.Therefore, the most appropriated meaning of the word “person”appears to be – “the body of a human being as presented to publicview usually with its appropriate coverings and clothings”. In acivilized society, appropriate coverings and clothings are 10 BA-109,914-24.odtconsidered absolutely essential and no sane human being comesin a gaze of others without appropriate coverings and clothings.The appropriate coverings will include footwear also as normally itis considered an essential article to be worn while moving outsideone’s home. Lastly, it has been observed that the word “person”would mean a human being with appropriate coverings andclothings and also footwear. On the basis of these observationsthe Court held that the benefit of Section 50 of the NDPS Actcannot be extended to include bags or articles as the same maylead to an unworkable understanding of the provision. 21.The Hon'ble Supreme Court in Ranjan Kumar (supra) underhead ‘settling the conflicts between Sk. Raju and BaljinderSingh (supra)’, in paragraph No.108 observed that the High Courtof Delhi in Akhilesh Bharti vs. State reported in 2020 SCCOnline Delhi 306 had the occasion to look into the cleavage ofopinion expressed in Baljinder Singh (supra) and Sk. Raju(supra). The High Court therein noted the thin line of distinctiondrawn by Sk. Raju (supra), where the contraband is recoveredfrom an object which is held by the accused in his hand. In such asituation the High Court held that even if nothing is recovered fromthe person, Section 50 ought to be complied with. Thenreproduced the findings of the Delhi High Court. 11 BA-109,914-24.odt22.In Sk. Raju (supra), the Bench of three Judges held thatwhere merely a bag carried by a person is searched without therebeing any search of his person, Section 50 will have no application,but if the personal search of the accused is also conducted, theprovisions of Section 50 of the NDPS Act would wholly apply.23.The Hon'ble Supreme Court in Ranjan Kumar (supra) inparagraph No.120 observed that in the facts of the present case,there is no scope of applying the ratio of Paramanand (supra)and Sk. Raju (supra). At the cost of repetition, we may state thatin the case on hand, there is nothing to indicate that the search ofthe person of the accused was also undertaken along with a bagwhich he was carrying on his shoulder.24.In paragraph No.121, it has been further observed that wedo not propose to say anything further as regards Sk. Raju(supra) as well as Baljinder Singh (supra). We adhere to theprinciple of law as explained by the Constitutional Bench in BaldevSingh (supra) and the Larger Bench answering the reference inPawan Kumar (supra).25.The Hon'ble Supreme Court, in the case Hamid Bhai AdamBhai Malik vs. State of Gujrat, AIR 2009 SC 1378, held thatSection 42 would be invokable only if the search is made by thePolice Officer or the concerned authority upon the priorinformation. When such information, intimation or knowledge 12 BA-109,914-24.odtcomes to the notice of the Investigating Officer in the regularpatrolling or an investigation of some other offence, it is notnecessary to follow the conditions incorporated in Section 42 ofthe NDPS Act in all cases. Where the police officer or concernedauthority has prior information, intimation or knowledge, he has toseek authorization to enter the premises, search physically at anypremises or vessel and seize the contraband, if any.26.In the case of applicants Azim and Wajid, the police receivedthe information while patrolling.27.In the case of applicants Dinesh and another, the contrabandwas discovered while investigating the vehicular accident. In thissituation, in view of the ratio laid down in the case of Hamidbhai(supra), authorization by a competent authority to conduct asearch was not necessary.28. The purpose of Section 50 of the NDPS Act is to apprise theaccused of his right to have a search before the Gazetted Officeror the Magistrate. An option should be given to the accused of hisright under Section 50 of the NDPTS Act. Then, it is his choicewhether to exercise the right or not. The investigating Officer canseize the contraband where the accused denies exercising his rightunder the said Section. However, he should send to the Officerappointed under Section 53 of the NDPS Act. 13 BA-109,914-24.odt29.In the case of applicants Azim and another, the contents ofthe notice are specific that the applicants were made aware oftheir right to be searched before the Gazetted Officer orMagistrate. However, they did not choose to be searched beforethe Officer or Magistrate. Reading the contents of the notice andendorsement with the signature of the applicants to have a searchin the presence of the P.S.I. indicates that Section 50 of the NDPSAct has been complied with. 30.In the case of applicants Dinesh and another, thecontrabands were seized from the dickey of the vehicle. Hence,Section 50 (1) of the NDPS Act does not apply.31.The prosecution has vehemently argued that Sections 52-Aof the NDPS Act has been complied with. There is no lawprohibiting the drawing of samples immediately after the seizurefrom the spot of the incident. The contraband, which is a narcoticdrug, is to be destroyed quickly. Its stock could not be stored tillthe conclusion of the trial. The procedure laid down in Section 52-Aof the NDPS Act is to be followed for destruction purposes. It is justa procedure and not the mandate of law. Section 52-A of the NDPSAct speaks of the disposal of contraband, and for the purpose ofidentification of the contraband, samples are secured in thepresence of the Magistrate. Those are used in the trial withoutproducing the entire contraband. The Investigating Officer may 14 BA-109,914-24.odtapply to the Magistrate under Section 52-A of the NDPS Act tocertify the correctness of inventory so prepared or take thephotographs of contraband/narcotic drugs in the presence of theMagistrate and to certify that such photographs as true; orallowing to draw representative samples of such drugs orsubstances, in the presence of such Magistrate and certifying thecorrectness of any list of samples so drawn.32.Section 52-A of the NDPS Act provides for the disposal ofseized narcotic drugs and psychotropic substances. Section 52A ofthe NDPS Act has been crystalized in many cases. Union of Indiavs. Mohanlal (supra) was the landmark judgment on this Section.It has been held in paragraph No.13 that, "Sub-section (3) ofSection 52-A requires that the Magistrate shall as soon as may beallow the application. This implies that no sooner the seizure iseffected and the contraband forwarded to the officer in charge ofthe Police Station or the officer empowered, the officer concernedis in law duty bound to approach the Magistrate for the purposesmentioned above including grant of permission to drawrepresentative samples in his presence, which samples will thenbeenlisted and the correctness of the list of samples so drawncertified by the Magistrate. In other words, the process of drawingthe samples has to be in the presence and under the supervisionof the Magistrate and the entire exercise has to be certified by himto be correct. The question of drawing of samples at the time of 15 BA-109,914-24.odtseizure which, more often than not, takes place in the absence ofthe Magistrate, does not in the above scheme of things arise. Thisis so especially when, according to Section 52-A(4) of the Act,samples drawn and certified by the Magistrate in compliance withsub-section (2) and (3) of Section 52-A above constitute primaryevidence for the purpose of the trial. Suffice it to say that there isno provision in the Act that mandates taking of samples at thetime of seizure….”.33.The Rules 2022 were framed after the directions in Mohalal(supra). Those are in Chapter III with the title '‘Sampling'’. Rule 8provides for an application to the Magistrate. Reading Rules 8 and9 together, it is clear that soon after the seizure of the materialunder the NDPS Act, it must be forwarded to the in charge of thenearest Police Station or to the Officer empowered under Section53 of the Act, and such an officer shall on preparing the inventorymove an application to the Magistrate under Sub-section (2) ofSection 52A of the NDPS Act. The Investigating Officer shall ensurethat the samples of the seized material are drawn in the presenceof the Magistrate, and the same is certified by the Magistrate inaccordance with the provisions of said sub-section. Rule 10provides for drawing the samples in duplicate from each packet.Rule 11 provides for the quantity that should be drawn forsampling. Reading these Rules, it is crystal clear that soon afterthe seizure of the contraband, the Investigating Officer has no 16 BA-109,914-24.odtpower to draw the samples on the spot of the incident or the placewhere the contraband is seized. He has to send it after sealing tothe offiicer authorized under Section 53 of the said Act.34. The Hon’ble Supreme Court in Simaranjit Singh V State ofPunjab, 2023 Live Law (SC) 570, held that drawing samples atthe time of seizure is not in conformity with the law laid down inMohanlal (Supra).35. The case of Mukesh Rajaram Chaudhari v State ofMaharashtra, 2023 All M.R. (Cri) 3688 was based on the factthat the contraband was seized before Rules 2022. The Courtdiscussed about Rules 2022 in paragraphs 15 and 16 and observedthat there was no need to send the samples which were drawnbefore the Magistrate to the Chemical Analyser prior to Rules.Now, the rules have cleared the controversy. Hence, this casewould not assist the learned A.P.P.36. In Ibrahim Khawaja Miya Sayyed (Supra) the definition ofthe term ‘Ganja’ under section 2 (iii) (b) has been considered. Itmeans the flowering or fruiting tops of the Cannabis Plant,excluding the seeds and leaves when not accompanied by thetops), by whatsoever name they may be known or designated. Aplain reading of this Section would reveal seeds and leaves not becovered under the definition of ‘ganja’ unless they areaccompanied by flowering or fruiting tops. The fact that the entire 17 BA-109,914-24.odtsubstance was weighed together without quantifying the weight ofthe flowering and fruiting tops, casts doubt whether ‘ Ganja’ seizedfrom the applicant was the quantity as to attract provision undersection 20(c) of the Act.37. The above view is reiterated in a series of the judgments ofthis High Court, and doubt has been raised on the actual quantityof the Ganja giving such benefits, the rider of Section 37 of theNDPS Act, has also not been applied. Similar was the condition inthe cases at hand. Without segregating the flowering or fruitingtops from seeds, leaves, and stems, the contraband recovered wasweighed. Therefore, there was scope to doubt whether section22( C) of the Act would apply.38. On examining the facts, it is apparent that Section 52A of theNDPS Act, read with Rules 8, 9, and 10 of the Rules 2022, are notstrictly followed. Hence, the applicants deserve bail.ORDERi)The bail applications are allowed.ii)Applicants (1) Azim s/o Jafar Qureshi and (2) Wajid s/o KalimQureshi in B.A.No.109 of 2024 and) Dinesh s/o BhawarlalChaudhary (Jat) and Sharukh Khan Jakir Khan Pathan inB.A.No.914 of 2024, on furnishing PB and SB of Rs.50,000/-,with one local solvent surety of the like amount each, in theabove crimes for the aforesaid offence, on the conditions 18 BA-109,914-24.odtthat,(a)they should furnish their residential proofs and cellphone numbers to the Investigating Officer with anundertaking that they would not change them till theconclusion of the trial;(b)they should not leave their residence without priorpermission of the Court;(c)they should not involve in similar crimes;(d)they should attend the trial on each and everyeffective date. ( S. G. MEHARE ) JUDGErrd