Manoj Shyamdev Saw vs State of Maharashtra

The present bail application is filed by the applicant under Section 439 of the Code of Criminal Procedure, 1973, seeking his release in connection with Crime Register No. 488 of 2024 registered at Palghar Police Station, Vasai – Virar. The applicant is alleged to have committed offences punishable under Sections 8(c), 20(b)(ii)(c), and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “NDPS Act”).

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The case of the prosecution, in brief, is that on 23 May 2024, the informant, who is a responsible officer attached to the local

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anti-narcotics cell, received specific secret information that two individuals would be transporting a large quantity of ganja in an auto-rickshaw bearing registration number MH-04/JH-7119. The said information was reduced into writing in accordance with Section 42 of the NDPS Act and was duly forwarded to the superior officer. Acting on this information, a naka bandi (roadblock) was arranged at a strategic location. At about the expected time, the said auto-rickshaw was intercepted. Two persons, namely the present applicant and co-accused Manoj Kumar Rameshwar Yadav, were found seated inside the said vehicle. On preliminary inquiry, the police officers noticed two black-colored fiber suitcases in the auto-rickshaw. Both the accused gave evasive and unsatisfactory answers regarding the ownership and contents of the said suitcases. Thereafter, in the presence of independent panch witnesses and after informing the accused of their statutory rights, the search of the vehicle and the luggage was carried out in accordance with Section 43 of the NDPS Act, which governs search and seizure in public places.

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During the search, one blue-colored plastic bag containing 11.500 kilograms of ganja was recovered from the first suitcase, and another blue-colored plastic bag containing 12.500 kilograms of ganja was recovered from the second suitcase. Thus, a total of 24 kilograms of ganja was seized from the two suitcases. Both accused persons were taken into custody immediately, and the mandatory formalities under the NDPS Act, such as preparation of panchnama, seizure memo, sealing of the contraband, and drawing of representative samples for chemical analysis, were duly

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complied with. The contraband was found to be within the direct access and control of the applicant and the co-accused, indicating their conscious possession of the same. The chemical analysis report confirmed the seized substance to be ganja, a narcotic drug as defined under the NDPS Act. The investigation was thereafter completed, and a detailed charge-sheet has been filed against the applicant and the co-accused.

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The learned Advocate for the applicant submitted that there is non-compliance with Section 42(2) of the NDPS Act, as the record does not indicate forwarding of the secret information to the superior officer as required by law. It is also his submission that the seized substance does not strictly fall within the definition of “ganja” under Section 2(iii)(b) of the NDPS Act, and therefore the applicant is entitled to be released on regular bail.

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Per contra, the learned APP opposed the bail application. She submitted that the contraband recovered from the conscious possession of the applicant and co-accused weighs 24 kilograms, which is a commercial quantity. Hence, the rigour of Section 37 of the NDPS Act squarely applies. She further contended that the seized substance answers the definition of “ganja” as it consists of flowering tops, along with parts of the cannabis plant including leaves, as described in the NDPS Act. Thus, the applicant’s contention to the contrary is unsustainable.

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The learned APP further pointed out that the Investigating Officer had, in fact, communicated the information to his superior officer, namely the Assistant Commissioner of Police, in writing,

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thereby complying with the mandatory requirement under Section 42(2) of the NDPS Act. She argued that in view of such compliance and the fact that the recovery pertains to a commercial quantity of narcotic substance, the applicant does not satisfy the twin conditions prescribed under Section 37 of the NDPS Act for grant of bail. Hence, the present bail application deserves to be rejected.

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I have considered the rival submissions of the learned Advocate for the applicant and the learned APP. I have also perused the case papers and the charge-sheet placed before me.

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The record reveals that the information received by the informant was reduced into writing and duly forwarded to the superior officer, namely the Assistant Commissioner of Police, in compliance with Section 42(2) of the NDPS Act. The seizure panchnama further shows that the recovery was made in the presence of independent panch witnesses and that all mandatory safeguards provided under the NDPS Act were duly followed. The argument of the applicant that there is non-compliance of Section 42(2) does not appear to be borne out from the record.

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The contraband seized from the two suitcases in the autorickshaw occupied by the applicant and co-accused is found to be 24 kilograms of ganja. As per the Notification issued under the NDPS Act, the commercial quantity for ganja is 20 kilograms. The present seizure is therefore well above the threshold of commercial quantity. Once the recovery is of commercial quantity, the embargo contained under Section 37 of the NDPS Act gets attracted.

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Section 37 of the NDPS Act provides that no person accused of an offence involving commercial quantity shall be released on bail unless the Court is satisfied that there are reasonable grounds to believe that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions under Section 37 are in addition to the limitations contained in the Code of Criminal Procedure.

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In the present case, the recovery of ganja is made from the vehicle occupied by the applicant. The contraband was within his reach and access. The element of conscious possession, therefore, cannot be ruled out at this stage. The applicant has not been able to place on record any material which would create reasonable grounds for believing that he is not guilty of the offence alleged. On the contrary, the material collected during investigation prima facie indicates his involvement in transporting the contraband along with the co-accused.

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The submission of the applicant that the seized material does not fall within the definition of ganja is also without merit. The Chemical Analyzer’s report clearly confirms that the seized material is ganja within the meaning of Section 2(iii)(b) of the NDPS Act. At the stage of considering bail, this Court cannot go into the minute details of evidence.

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In view of the above, the twin conditions laid down under Section 37 of the NDPS Act are not satisfied. Considering the serious nature of the offence, the recovery of commercial quantity

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of contraband, and the statutory restrictions, this Court finds no case made out for grant of bail to the applicant.

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The Bail Application stands rejected.

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(AMIT BORKAR, J.)

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Manoj Shyamdev Saw v. State of Maharashtra

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Manoj Shyamdev Saw v. State of Maharashtra

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