Bombay High Court
Chinedu Igwe vs Union Of India And Anr on 23 July, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:28873
VISHAL
SUBHASH ba-1224-2024.doc
PAREKAR
Digitally signed by
VISHAL SUBHASH
PAREKAR
Date: 2024.07.23
16:07:46 +0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.1224 OF 2024
Chinedu Igwe ...Applicant
vs.
Union of India and Anr. ...Respondents
Mr. Dilip Mishra a/w. Mr. Ayaz Khan a/w. Ms. Zehra Charania, Ms.
Mallika Sharma, for the Applicant.
Mr. Shreeram Shirsat, SPP a/w. Ms. Tanvi Mate, Ms. Karishma
Rajesh, for Respondent No. 1.
Mr. A.A. Naik, APP, for the Respondent/State.
CORAM : N. J. JAMADAR, J.
RESERVED ON : JULY 18, 2024
PRONOUNCED ON : JULY 23, 2024
P.C.:
1. Heard the learned counsel for the parties.
2. The applicant, who is arraigned in Special Case No. 559 of
2022 arising out of NCB/MZU/C.R. No. 94 of 2021 registered with
Narcotics Control Bureau, Mumbai for the offences punishable
under sections 20(b)(ii)(A), 21(b), 22(b), 22(c), 25, 27, 28, 29 and
35 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(the NDPS Act, 1985), seeks to be enlarged on bail.
3. On 2nd October, 2021 the officers of the NCB effected seizure of
narcotic substance from the co-accused at International Cruise
Terminal, Green Gate, Mumbai. Pursuant to disclosures made by
the accused, a number of persons were apprehended alongwith
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narcotic substance.
4. While the investigation in the said crime was underway, the
Intelligence Officer, NCB received an information that one foreign
national, whose features were described by the informant, was to
come near Prestige Hotel, Station Road, Andheri, Mumbai to deliver
the contraband substance to an unknown person. On 6 th October,
2021 at 21.30 hours a surveillance was mounted by the officers of
NCB in the presence of panch witnesses Adil Fazal Usmani and
Saiyed Zuber Ahmed Miya, near the said hotel. It is alleged, the
applicant whose features matched the description given by the
informant came near the Prestige Hotel. He was accosted. He
identified himself as Chinedu Igwe, a Nigerian national. The
applicant was served a notice under section 50 of the NDPS Act,
1985. As the applicant, volunteered to be searched before any
officer of NCB, search was conducted.
5. A transparent polythene pouch containing pink colour
ecstasy (MDMA) tablets was found in possession of the applicant.
The contraband substance weighed 15 gms. It was seized. The
applicant came to be arrested.
6. Mr. Dilip Mishra, learned counsel for the applicant, submitted
that the search and seizure is completely vitiated as there is a clear
non-compliance of the mandate contained in section 50 of the NDPS
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Act, 1985. Elaborating the submission, it was urged that the seizure
panchanama does not record that the applicant was apprised of his
right to be searched before a nearest Magistrate or gazetted officer.
To suit the prosecution case, however, a notice under section 50 of
the NDPS Act, 1985 (page 345) is shown to have been served on the
applicant. Yet, the said notice, does not bear the signatures of the
panch witnesses. Even the statements of panch witnesses recorded
during the course of investigation run counter to the prosecution
case of the applicant having been apprised of his statutory right.
7. Secondly, Mr. Mishra would urge that, the material on record
does not indicate as to how the Intelligence Officer came to know
about the alleged complicity of the applicant. It is not the case that
any of the co-accused had named the applicant as the supplier or a
confederate in the conspiracy to trade in illicit drugs. Nor the
Intelligence Officer had recorded the information note. Thus, there
is a breach of mandate contained in section 42 of the NDPS Act,
1985.
8. Thirdly, the provisions contained in section 52A of the NDPS
Act, 1985 have not been scrupulously complied with. There is an
inordinate delay in conducting the inventory panchnama before the
Magistrate under section 52A of the NDPS Act, 1985. Mr. Mishra
would urge that, this Court has already taken note of the said
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infirmity in the proceedings under section 52A of the NDPS Act,
1985 and released the co-accused Abdul Shaikh on bail.
9. It was further submitted that, even otherwise, on account of
long period of incarceration as an under trial prisoner without the
possibility of conclusion of trial within a reasonable period, the
applicant is entitled to be enlarged on bail. Mr. Mishra, would urge
that while releasing Abdul Shaikh on bail, this Court had considered
the grounds of long incarceration also. The applicant is also entitled
to the same dispensation.
10. Mr. Shirsat, learned Special PP for respondent No. 1,
submitted that the fact that the applicant was found in possession
of commercial quantity of the contraband substance cannot be lost
sight of. Laying emphasis on the deleterious effect of illicit trade in
drugs on the heath and wealth of the nation, Mr. Shirsat would urge
that the applicant cannot be permitted to take advantage of the
technical pleas when the twin conditions contained in section 37 of
the NDPS Act, 1985 have not been fulfilled. To this end, reliance was
placed on the decision of the Supreme Court in the case of Ranjan
Kumar Chadha vs. State of Himachal Pradesh1
11. Mr. Shirsat further submitted that the ground that there is
non-compliance of the provisions contained in section 50 of the
NDPS Act, 1985 is ex-facie untenable. The notice (page 345)
1 Cri.Appeal No. 2239-2240/2011 Dt. 06-10-23.
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evidences the fact that the applicant was duly apprised of his right
under section 50 of the NDPS Act, 1985. The absence of specific
words in the seizure panchanama, according to Mr. Shirsat, does
not detract materially from the prosecution version.
12. As regards delay in conducting proceedings under Section
52A, Mr. Shirsat would submit that in the affidavit in reply the
investigating officer has furnished justifiable explanation for the
delay in holding the inventory panchnama before the learned
Magistrate. Whether the delay has resulted in any prejudice to the
applicant would be a matter for adjudication at trial.
13. Mr. Shirsat further urged that the applicant cannot claim
parity with Abdul Shaikh as while releasing him on bail this Court
had adverted to a discrepancy in the sample which was allegedly
recovered from Abdul Shaikh and the sample which was sent for
analysis.
14. To start with, it is necessary to note that it does not appear
that the applicant has been named as a co-accused or confederate in
the conspiracy, by any of the co-accused. The seizure panchanama
dated 6th October, 2021 records that the Intelligence Officer had
apprised the panch witnesses that he had received information that
a foreign national was to arrive near Prestige Hotel to deliver the
contraband substance. It is not the prosecution case that the
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Intelligence Officer had reduced the said information into writing.
Suffice to note the prosecution does not bank upon any information
note. In that view of the matter, the absence of information note
cannot be said to be immaterial or inconsequential.
15. The ground that the investigating officer had not prepared
the information note thus carries some substance. It does not
appear to be the case of the prosecution that the identity of the
applicant as one of the members of the drug cartel was revealed by
any co-accused. On the contrary, the seizure memorandum
indicates that the investigating officer apprised the panchas that he
had received an information. Absence of the information note thus,
prima facie, impairs the prosecution case. Even time at which the
applicant was allegedly accosted does not find mention in the
seizure panchanama as the space for mentioning the time appears
blank.
16. The compliance with the mandate contained in section 50 of
the NDPS Act, 1985 also appears to be far from satisfactory. The
seizure panchanama simply records that, after the applicant
identified himself, the investigating officer issued a notice under
section 50 of the NDPS Act, 1985 to the applicant and, thereupon,
the applicant voluntarily agreed to tender his personal search
before any officer of NCB, available at the spot. Prima facie the
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seizure panchanama, does not indicate that the applicant was
informed of his right to be searched before the nearest Magistrate
or gazetted officer.
17. In the case of State of Punjab vs. Baldev Singh2 a Constitution
Bench of the Supreme Court held that "when an empowered officer
or a duly authorised officer acting on prior information is about to
search a person, it is imperative for him to inform the concerned
person of his right under Sub-section (1) of Section 50 of being
taken to the nearest Gazetted Officer or the nearest Magistrate for
making the search. Failure to inform the concerned person about
the existence of his right to be searched before a Gazetted Officer or
a Magistrate would cause prejudice to an accused. Such failure may
render the recovery of the contraband suspect and conviction and
sentence of an accused bad and unsustainable in law."
18. Another Constitution Bench in the case of Vijaysinh
Chandubha Jadeja vs. State of Gujarat3 emphasized the mandatory
nature of the provisions contained in section 50 of the NDPS Act, in
the following words:-
29] In view of the foregoing discussion, we are of the firm
opinion that the object with which right under Section
50(1) of the NDPS Act, by way of a safeguard, has been
conferred on the suspect, viz. to check the misuse of power,
to avoid harm to innocent persons and to minimize the
allegations of planting or foisting of false cases by the law
2 (1999) 6 SCC 172.
3 2011(1) SCC 609.
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enforcement agencies, it would be imperative on the part of
the empowered officer to apprise the person intended to be
searched of his right to be searched before a gazetted
officer or a Magistrate. We have no hesitation in holding
that in so far as the obligation of the authorized officer
under sub-section (1) of Section 50 of the NDPS Act is
concerned, it is mandatory and requires a strict
compliance. Failure to comply with the provision would
render the recovery of the illicit article suspect and vitiate
the conviction if the same is recorded only on the basis of
the recovery of the illicit article from the person of the
accused during such search. Thereafter, the suspect may or
may not choose to exercise the right provided to him under
the said provision.
(emphasis supplied)
19. Mr. Shirsat attempted to salvage the position by banking upon
the copy of notice (page 345), purported to be issued under section
50 of the NDPS Act, 1985. It was submitted that the said notice
evidences compliance of the mandate contained in section 50 of the
Act.
20. There are concomitant circumstances which make it rather
difficult to accede the aforesaid submission of Mr. Shirsat,
unreservedly. Firstly, the notice does not bear the signatures of the
public witnesses. Secondly, the statement of public witness Adil
Usmani and Mohd Zuber Ahmad, prima facie, run counter to the
statement in the notice. For Adil Usmani, the applicant was
informed that, if desired by him, his search could be taken before
the senior officer. Whereas, Mohd Zuber Ahmad stated that a sheet
of paper was given to the applicant but the said witnesses did not
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know the contents thereof.
21. It is true, it is not peremptory that the suspect must be
informed of his right under section 50 of the NDPS Act, 1985 in
writing. However, there must be material to indicate that the
suspect was so informed. In the case at hand, the seizure
panchanama coupled with the statement of the panch witnesses,
throw a cloud of doubt over the compliance of the mandate
contained in section 50 of the NDPS Act, 1985.
22. Reliance placed by Mr. Mishra on an order passed by this
Court in the case of Nazir Maqsud Shaikh vs. The State of
Maharashtra4, appears to be well founded.
23. In the backdrop of the aforesaid infirmities in the search and
seizure, I am not persuaded to agree with the submission of Mr.
Shirsat that the plea of non-compliance of section 50 of the NDPS
Act, 1985 is a technical plea. If viewed in the context of the
stringent punishment prescribed under NDPS Act and also the
restrictions in the matter of grant of bail, the provisions contained
in section 50 incorporate a valuable safeguard. The non-compliance
thereof results in a definite prejudice to the suspect and, thus,
cannot be brushed aside as a technical plea.
24. On the aspect of delay in the proceedings under section 52A of
the NDPS Act, 1985, while dealing with an identical contention on
4 BA No.1459 of 2021 Dt. 14/10/2022.
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behalf of Abdul Shaikh - the co-accused - (BA No. 4047 of 2023),
this Court had observed, inter alia, as under:-
23] The aspect of delay in conducting the proceedings
under section 52A of the NDPS Act, 1985 is required to be
appreciated in the light of the obligation of the empowered
officer under section 52A(2) of the NDPS Act, 1985 and the
duty cast on the Magistrate under sub section (3) of Section
52A. In the case of Union of India v. Mohanlal and Another 5,
the Supreme Court has enunciated that,
"There is equally no doubt that the process of making any such
application and resultant sampling and certification cannot be left to the
whims of the officers concerned. The scheme of the Act in general and
Section 52-A in particular, does not brook any delay in the matter of making of
an application or the drawing of samples and certification. While we see no
room for prescribing or reading a time frame into the provision, we are of the
view that an application for sampling and certification ought to be made
without undue delay and the Magistrate on receipt of any such application will
be expected to attend to the application and do the needful, within a
reasonable period and without any undue delay or procrastination as is
mandated by sub-section (3) of Section 52A.
(emphasis supplied)
24] In the case at hand, the seizure was effected on 3 rd
October, 2021. The investigating officer, it appears, made
an application before the jurisdictional Magistrate on
18th November, 2021. The proceedings before the learned
Magistrate were conducted on 4th December, 2021. There
is element of delay on the part of investigating officer, in
seeking the certification of the inventory of the
contraband and drawing of samples thereof."
25. The explanation sought to be offered on behalf of the
prosecution in the affidavit in reply to account for the delay, is a
matter which is required to be appreciated at the trial. This aspect
of delay, if considered in conjunction with the apparent infirmities
in the search and seizure (referred to above) assumes significance
and cumulatively justifies an inference that the prosecution will
5 (2016) 3 Supreme Court Cases 379.
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have to surmount the challenges of non-compliance of the
provisions contained in sections 50 and 52A of the NDPS Act, 1985,
scrupulously.
26. On the aspect of prolonged period of incarceration, while
releasing Abdul Shaikh on bail, this Court had observed, inter alia,
as under:-
28] In any event, the applicant has been in custody since
4th October, 2021. The applicant has been incarcerated
for 2 and half years. I find substance in the submission of
Mr. Mor that having regard to the number of accused
arraigned in the crime, and the evidence which the
prosecution may be required to be adduce to bring home
the charge against the accused, it is extremely unlikely
that the trial can be concluded within a reasonable
period.
29] It is well neigh settled that a long period of
incarceration without a realistic prospect of expeditious
conclusion of the trial renders the detention of the
accused as an undertrial prisoner foul of the right to
speedy trial; a facet of right to life and personal liberty
guaranteed under Article 21 of the Constitution of India.
It has been held that the statutory restrictions in the
matter of granting bail, like the one under section 37 of
the NDPS Act, 1985, melt down in the face of such
prolonged period of incarceration without the prospect
of expeditious conclusion of the trial. (Union of India vs.
K.A. Najeeb6.
30] A useful reference in this context can also be made
to a decision of the Supreme Court in the case of Rabi
Prakash v. The State of Odisha 7, wherein the Supreme
Court observed that,
"The prolonged incarceration, generally militates against
the most precious fundamental right guaranteed under Article 21
of the Constitution and in such a situation, the conditional liberty
must override the statutory embargo created under section 37(1)
(b)(ii) of the Act.
6 (2021) 3 SCC 713.
7 Spl. Leave to Appeal (Cri.) No. 4169 of 2023
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27. Mr. Shirsat fairly submitted that the ground of long
incarceration, which weighed with this Court in releasing Abdul
Kadar Shaikh on bail, may also govern the claim of the applicant for
bail.
28. The applicant has been in custody since 7 th October, 2021.
Having regard the number of accused, and the number of witnesses,
which the prosecution may be required to examine, it is extremely
unlikely that the trial can be concluded within a reasonable period. I
am, therefore, impelled to hold that, in the facts of the case, the
statutory restrictions in the matter of grant of bail, may melt down
in the face of long period of incarceration.
29. The Court is not informed that the applicant has antecedents.
The Court may thus justifiably draw an inference that the applicant
may not indulge in identical offences, if enlarged on bail.
30. I am, therefore, inclined to exercise discretion in favour of the
applicant.
Hence, the following order.
ORDER
1] The application stands allowed.
2] The applicant be released on bail in C.R. No. 94 of 2021 registered with Narcotics Control Bureau, Mumbai on furnishing a P.R. Bond of Rs. 1,00,000/- with one or more sureties in the like amount.
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3] The applicant shall mark his presence at NCB, Mumbai on the first Monday of every month between 11 am to 1 pm for a period of three years or till conclusion of the trial, whichever is earlier.
4] The applicant shall not tamper with the prosecution evidence and give threat or inducement to first informant, any of the prosecution witnesses or any person acquainted with the facts of the case.
5] The applicant shall furnish his contact number and residential address to the investigating officer and shall keep him updated, in case there is any change.
6] Subject to the deportation proceedings, which may be initiated against the applicant by the competent authorities, the applicant shall not leave India, without prior permission of the Special Court.
7] The applicant shall regularly attend the proceedings before the jurisdictional Court.
8] By way of abundant caution, it is clarified that the observations made hereinabove are confined for the purpose of determination of the entitlement for bail and they may not be construed as an expression of opinion on the guilt or otherwise of the applicant and the trial Court shall not be influenced by any of the observations made hereinabove.
Application disposed.
(N. J. JAMADAR, J.)
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