ARBAZ HAMID KHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The present application for grant of regular bail is preferred by the applicant under the provisions of Sec. 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking his release in connection with Crime Register No. 45 of 2023 registered with the Anti-Narcotics Cell, Azad Maidan Unit, Mumbai, for offences punishable under Sec. 8(c) read with Ss. 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "NDPS Act").

(2.) As per the case put forth by the prosecution, on 12/5/2023, the surveillance team of the ANC, Azad Maidan Unit, Mumbai, was acting under specific directions issued by their superior officer to trace absconding accused persons and to take preventive and enforcement action against individuals indulging in the consumption and trafficking of narcotic drugs. Pursuant to the said directions, a field operation was initiated. On 13/5/2023, at around 00:50 hours, the police team reached the vicinity of Godrej Boys BEST Bus Stop, Vikhroli, where the applicant was noticed in a suspicious condition. Upon being spotted, the applicant attempted to evade the police by fleeing on his motorcycle, but was successfully apprehended by the police team. Upon conducting a search of his person, a quantity of 330 grams of Methamphetamine (commonly referred to as 'MD') was recovered from his possession. Thereafter, necessary procedural formalities were undertaken, including the preparation of a panchanama, and the present offence came to be registered.

(3.) Learned Advocate appearing for the applicant has submitted that there is gross non-compliance with the mandatory provisions of Sec. 42(1) and Sec. 42(2) of the NDPS Act. It is his contention that, as per the statutory mandate, the Investigating Officer was required to record reasons to believe the commission of an offence and to forward the said reasons to the immediate superior officer within a period of 72 hours, which has not been complied with in the present case. It is further submitted that there is also non-compliance with the mandate of Sec. 50 of the NDPS Act, inasmuch as the letter informing the applicant of the available options is a pre-typed format, and does not reflect the free exercise of choice by the applicant. The answer purportedly given by the applicant, that he is aware of his rights and consents to personal search by the police, is not sufficient compliance with the requirements of Sec. 50, which obligates the police to specifically inform the accused of his right to be searched in the presence of a Gazetted Officer or Magistrate, and to act accordingly depending on the choice made by the accused.