SHERALI HAFIZ KHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(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 Ss. 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 23/3/2024 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 Sec. 50 of the Act and there is no specific endorsement of the Applicant on the notice under Sec. 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 6/10/2023 and as per the observations made in pargaraph 63 of the said judgment, it is imperative on the part of 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 Sec. 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 Sec. 50 of the Act. He further submits that here in this case, there is non-compliance of Sec. 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 Sec. 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 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 Sec. 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. 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.