Dismissed

Kayyum Shah S/O. Shahan Shah and Another v. State of Mah. Thr. Pso, Ps Karanja (Ghadge), Tq. Karanja (Ghadge), Dist. Wardha.

Bombay HC29 Apr 2024BA/113/2024

Case brief

AI extract

What is this about?

Regular bail sought by applicants arrested for possessing 266.705 kg of Ganja in a car under Sections 8(c), 20 and 29 of the NDPS Act. Applicants argued non-compliance with Section 42 vitiated the raid; the court held substantial compliance was a question of fact for trial and rejected bail citing the rigor of Section 37.

What did the court decide?

Bail application rejected.

Kayyum Shah S/O. Shahan Shah and Another Vs State of Mah… — Narcotics (NDPS) | Bombay HC (2024)

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2024:BHC-NAG:5041

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224 ba113.244

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR.

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CRIMINAL APPLICATION (BA) NO.113/2024 Kayyum Shah s/o Shahan Shah and anr

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..vs..

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State of Maharashtra, through PSO Police Station Karanja (Ghadge), District Wardha

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...............................................................………………........................................………………………................................……………
Office Notes, Office Memoranda of Coram,
appearances, Court orders or directions Court's or Judge's Order
and Registrar's orders

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Shri J.B.Kasat, Counsel for Applicants.
Shri M.J.Khan, Additional Public Prosecutor for the State.

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CORAM : URMILA JOSHI-PHALKE, J. CLOSED ON : 25/04/2024 PRONOUNCED ON : 29/04/2024

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1. By this application under Section 439 of the Code
of Criminal Procedure, applicants arrested on 2.9.2022 seek
regular bail in connection with Crime No.327/2022 registered
with the non-applicant/police station for offences punishable
under Sections 8(c), 20, and 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (the NDPS Act).

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2. Heard learned counsel Shri J.B.Kasat for applicants
and learned Additional Public Prosecutor Shri M.J.Khan for the
State.

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3.On 2.9.2022, a Police Officer attached to the non-

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.....2/-

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224 ba113.244

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applicant/police station received a secret information that
applicants are proceeding in car bearing registration No.MH-
31/CR/8527 and carrying contraband article “Ganja” weighing
266.705 kilograms in the said car. A report came to be lodged.
On the basis of the said report, the police registered the crime
and, after investigation, submitted chargesheet against
applicants.

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4.Learned counsel for applicants submitted that
insofar as seizure of contraband article is concerned, there is
no compliance of Section 42 of the NDPS Act, which is
mandatory in nature. In view of settled principles of law and
the said non-compliance of Section 42(1) of the NDPS Act, trial
vitiates and it results into violation of Article 21 of the
Constitution of India. It is submitted that entire chargesheet
nowhere shows compliance of Section 42 of the NDPS Act. As
such, applicants deserve to be released on bail.

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5.In support of his contentions, learned counsel for
applicants placed reliance on the decision of this court in the
case of Sholadoye Samuel Joy vs. State of Maharashtra,
reported in 2022 SCC ONLine Bom 142 wherein by referring
the decision of the Honourable Apex Court in the case of

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224 ba113.244

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Karnal Singh vs. State of Haryana, reported in (2009)8 SCC
539 held that there was no compliance of Sections 42 and 50
of the NDPS Act and the accused is released on bail.

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6.Per contra, learned Additional Public Prosecutor for
the State strongly opposed the application on ground that huge
quantity of “Ganja” was seized from possession of applicants
who were travelling in the car which was intercepted by the
police. After following a due procedure, the contraband article
“Ganja” was seized in presence of panchas. The entire material
was produced before the Magistrate and inventory certificate
was obtained. The samples were drawn and sealed in presence
of the Magistrate. Thus, there is due compliance of provisions
of the NDPS Act. Considering rigor under Section 37 of the
NDPS Act, the application deserves to be rejected.

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7.In support of his contentions, learned Additional
Public Prosecutor placed reliance on the decision in the case of
Karnal Singh vs. State of Haryanasupra and submitted that
mere non-compliance under provision of the NDPS Act is not
sufficient to release applicants on bail.

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8.Having heard learned counsel for applicants and

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learned Additional Public Prosecutor for the State and perused
investigation papers, the First Information Report shows that a
Police Officer received a secret information that applicants are
proceeding in car bearing registration No.MH-31/CR/8527 and
carrying contraband article “Ganja” in the said car.
Accordingly, the said car was intercepted in presence of
panchas. A search of the car was taken and contraband article
“Ganja” was seized from the said car weighing 266.705
kilograms. The said contraband article was produced and
samples were obtained in presence of the Magistrate.
Accordingly, inventory certificate was obtained from the
Magistrate. Thus, there is no dispute as to fact that applicants
were found in possession of contraband article “Ganja: when
they were travelling in the said car.

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9. Learned counsel for applicants emphasized on

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compliance of Section 42 of the NDPS Act. Said Section 42
reads thus:

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“42. Power of entry, search, seizure and arrest
without warrant or authorisation.-- (l) Any such
officer (being an officer superior in rank to a peon,
sepoy or constable) of the departments of central
excise, narcotics, customs, revenue intelligence or
any other department of the Central Government

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224 ba113.244

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including para-military forces or armed forces as is
empowered in this behalf by general or special
order by the Central Government, or any such
officer (being an officer superior in rank to a peon,
sepoy or constable) of the revenue, drugs control,
excise, police or any other department of a State
Government as is empowered in this behalf by
general or special order of the State Government, if
he has reason to believe from personal knowledge
or information given by any person and taken
down in writing that any narcotic drug, or
psychotropic substance, or controlled substance in
respect of which an offence punishable under this
Act has been committed or any document or other
article which may furnish evidence of the
commission of such offence or any illegally
acquired property or any document or other article
which may furnish evidence of holding any illegally
acquired property which is liable for seizure or
freezing or forfeiture under Chapter V-A of this Act
is kept or concealed in any building, conveyance or
enclosed place, may between sunrise and sunset,-

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(a) enter into and search any such building,
conveyance or place;

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(b) in case of resistance, break open any
door and remove any obstacle to such entry;

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(c) seize such drug or substance and all
materials used in the manufacture thereof
and any other article and any animal or
conveyance which he has reason to believe
to be liable to confiscation under this Act
and any document or other article which he
has reason to believe may furnish evidence
of the commission of any offence punishable

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224 ba113.244

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under this Act or furnish evidence of holding
any illegally acquired property which is
liable for seizure or freezing or forfeiture
under Chapter V-A of this Act; and

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10.(d) detain and search, and, if he thinks
proper, arrest any person whom he has
reason to believe to have committed any
offence punishable under this Act:

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Provided that in respect of holder of a licence for
manufacture of manufactured drugs or
psychotropic substances or controlled substances
granted under this Act or any rule or order made
thereunder, such power shall be exercised by an
officer not below the rank of sub-inspector:

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Provided further that] if such officer has reason to
believe that a search warrant or authorisation
cannot be obtained without affording opportunity
for the concealment of evidence or facility for the
escape of an offender, he may enter and search
such building, conveyance or enclosed place at any
time between sunset and sunrise after recording
the grounds of his belief.

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(2) Where an officer takes down any information
in writing under sub-section (1) or records grounds
for his belief under the proviso thereto, he shall
within seventy-two hours send a copy thereof to his
immediate official superior.

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11.Much emphasis has been placed on Section 42 of

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the NDPS Act on behalf of the applicant to contend that the
raid conducted was entirely vitiated as there is no compliance

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224 ba113.244

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of Section 42 of the NDPS Act. Twin requirements of Section
42(1) and 42(2) of the NDPS Act are; firstly, person
conducting raid must be an empowered officer, superior to the
rank of constable, and secondly, if raid was conducted between
sunset and sunrise, the officer conducting such raid must
report grounds of belief that if the raid was not so conducted,
there would be chance of escape of offender and further that
such recorded grounds for his belief shall be communicated to
the superior officer within 72 hours. Learned counsel for the
applicant submitted that the said requirement is not fulfilled or
satisfied.

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12.In the context of these twin requirements, apparent
conflict between two earlier judgments of the Honourable
Apex Court was sought to be resolved in the case of Karnal
Singh vs. State of Haryana supra. The Constitution Bench of
the Honourable Apex Court considered extent of mandatory
nature of requirement of Section 42 of the NDPS Act and in
what circumstances accused may not get benefits of mere non
compliance unless it was established that he suffered prejudice
due to such non compliance. After considering scope of Section
42 of the NDPS Act, the Bench concluded that although twin

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requirement of Section 42 of the NDPS Act requires to be
complied with and total non-compliance of the same was
impermissible, if there was some delay in compliance which
could be explained satisfactorily by placing material on record,
such compliance be acceptable.

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13.Thus, if the aforesaid judgment is taken into
consideration, facts of the present case show that the secret
information was received by the police station and
immediately the car was intercepted. Perusal of the First
Information Report shows that information was given to
superior officer. Though document is not on record to show
that the said information was forwarded to the superior officer,
the First Information Report specifically states that by
informing the superior officer raiding party members
proceeded towards the spot. The Constitution Bench in the
aforesaid decision held that whether there has been an
adequate or substantial compliance of Section 42 of the NDPS
Act is a question of fact which can be decided in each case.

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14.Thus, it is only upon trial that the aforesaid aspect
could be decided in the present case also.

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15.The lapses pointed out by learned counsel for
applicants are prima facie. This aspect can be considered at
the time of trial. Question is, whether applicants are entitled to
claim any benefits at this stage for grant of bail on the basis of
contentions raised in the context of Section 42 of the NDPS
Act.

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The Honourable Apex Court in the case of State of Kerala vs. Rajesh, reported in 2020 ALL SCR CRI 1555 laid down liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.

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Thus, satisfaction contemplated regarding accused being not guilty has to be based on reasonable grounds. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. Thus, recording of satisfaction on these aspect is sine qua non for grant of bail.

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In the light of the above well settled legal position, there is a sufficient material on record to hold that applicants are involved in crime. In view of the rigor under Section 37 of the NDPS Act, I do not find merits in submissions of learned counsel for applicants and there are reasons to believe that applicants are guilty of said offences.

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In this view of the matter, the application deserves to be rejected and the same is rejected .

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The application stands disposed of.

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 (URMILA JOSHI-PHALKE, J.)

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!! BrWankhede !!

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Kayyum Shah S/O. Shahan Shah and Another v. State of Mah. Thr. Pso, Ps Karanja (Ghadge), Tq. Karanja (Ghadge), Dist. Wardha.

Case brief

What is this about?

What did the court decide?

Kayyum Shah S/O. Shahan Shah and Another v. State of Mah. Thr. Pso, Ps Karanja (Ghadge), Tq. Karanja (Ghadge), Dist. Wardha.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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