Bombay High Court
Aarif Akram Shaikh vs The State Of Maharashtra on 7 February, 2023
Author: M. S. Karnik
Bench: M. S. Karnik
Darshan Patil 23-ba-3158-21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 3158 OF 2021
Aarif Akram Shaikh ...Applicant
Versus
The State Of Maharashtra ...Respondent
Adv. Kamlesh Satre a/w Adv. Vikas Chavan for the Applicant.
Mr. S. V. Gavand, APP for the State.
CORAM: M. S. KARNIK, J
DATED: FEBRUARY 7, 2023
PC:-
1. Heard learned counsel for the applicant and learned APP
for the State.
2. This is an application for bail by the applicant- Aarif Akram
Shaikh in connection with C.R. No.I-392 of 2021 dated
19/05/2021, registered with Kashimira Police Station, under
sections 8(c), 21(c) and 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereafter "NDPS Act", for
short).
3. The First Information Report was registered on 19/05/2021.
The alleged incident is dated 18/05/2021. There are in all 3
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accused. During the course of the investigation in respect of an
accidental death, the Investigating Officer noticed 3 people
loitering in suspicious circumstances. Accordingly, the
Investigating Officer carried out the search. It is not in dispute
that the Empowered Officer who also happens to be the
Investigating Officer under section 42 of the NDPS Act, aprised
the persons their right under section 50 of the NDPS Act to be
searched before a Gazetted Officer or to the nearest Magistrate.
The accused waived the right to be searched before Gazetted
Officer in terms of section 50 of the NDPS Act.
4. The search was actually carried out by the Police Sub
Inspector (PSI) and the Police Naik. On page no. 66 of the
paperbook the search panchnama dated 18/05/2021 records
that PSI Hitendra Vichare and Police Naik Shri Sawant conducted
a search of the applicant in presence of 2 panchas. So far as the
applicant is concerned, he is the original accused no. 2. From
his possession 80 gms of MD which is admittedly a commercial
quantity was found.
5. Learned APP submitted that the recovery happened to be
chance recovery and therefore, merely because one of the
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persons who searched the applicant happened to be Police Naik
will not make any difference as in such case the provisions of
section 42 of the NDPS Act will not apply. In the submission of
the learned APP, the search is not pursuant to any information
received which is reduced in writing to attract section 42 of the
NDPS Act. According to him, only when section 42 of the NDPS
Act applies that, any such officer (being an officer superior in
rank to a peon, sepoy or constable) of the departments of the
Police can only conduct the search.
6. In the present case, it is not in dispute that the applicant
was apprised of his rights under section 50 of the NDPS Act. This
was by way of abundant caution, as is the submission of the
learned APP. Having informed the applicant of his right to be
searched in the presence of Gazetted Officer, in view of the
express provisions of section 50 of the NDPS Act, the search has
to be carried out by the officer mentioned in section 42 of the
NDPS Act. It is not in dispute that the PSI along with the Police
Naik conducted the search. For convenience section 50 of the
NDPS Act is reproduced which reads thus:
"50. Conditions under which search of persons shall
be conducted.--
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(1) When any officer duly authorised under section 42 is
about to search any person under the provisions of
section 41, section 42 or section 43, he shall, if such
person so requires, take such person without unnecessary
delay to nearest Gazetted Officer of any of the
departments mentioned in section 42 or to the nearest
Magistrate.
(2) If such requisition is made, the officer may detain the
person until he can bring him before the Gazetted Officer
or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom
any such person is brought shall, if he sees no reasonable
ground for search, forthwith discharge the person but
otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a
female.
(5) When an officer duly authorised under section 42 has
reason to believe that it is not possible to take the person
to be searched to the nearest Gazetted Officer or
Magistrate without the possibility of the person to be
searched parting with possession of any narcotic drug or
psychotropic substance, or controlled substance or article
or document, he may, instead of taking such person to
the nearest Gazetted Officer or Magistrate, proceed to
search the person as provided under section100 of the
Code of Criminal Procedure, 1973.
(6) After a search is conducted under sub-section (5), the
officer shall record the reasons for such belief which
necessitated such search and within seventy-two hours
send a copy thereof to his immediate official superior."
7. Learned counsel for the applicant relied upon the order
dated 23/08/2022 passed by this Court in Haji Mohd. Abdul
Kadar Bhumedia Vs. The State of Maharashtra 1. Paragraph
Nos 7 and 8 of the said order read thus:
1 Bail Application No. 378 of 2022
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"7 Section 42 of the NDPS Act prescribe the power of entry,
search, seizure and arrest, and it specifically enumerate the
Officers who are empowered to exercise the said power. Section
42 envisage that any such Officer (being an officer superior in
rank to a peon, sepoy or constable), apart from the other
department, the Police Department of the State Government is
empowered to take search of the person under the Act, in
exercise of powers conferred by sub-section (1) of Section 42 of
the NDPS Act.
The Government of Maharashtra has issued a circular on
14/11/1985, prescribing that all Officers of, and above the
ranking of Head Constables in the State of Maharashtra are
permitted to take search u/s.42. The said circular categorically
designate the Police Officers of, and above the ranking of Head
Constables, as competent Officers who are empowered to
exercise the powers under sub-section (1) of Section 42 i.e. of
search and seizure.
Admittedly, from the panchnama, it is apparent that the
API directed the Police Naik to carry out the search, and it is he
who carried the personal search of the applicant, which lead to
the recovery of Mephedrone. Since the Police Naik is below the
rank of Head Constable in the State of Maharashtra, he is not an
empowered Officer and though the search is carried out in
presence of the API, it is not a valid search.
. In Dilkush Sinai vs. State of Goa, 1995(2), Goa.L.T, where
the PSI himself did not search the accused, but directed the two
panch witnesses to conduct the search, the question that arose
for consideration before the Division Bench was whether the
search by panchas in presence of PSI, was legal one and if not,
whether the trial would be vitiated on account of the fact that
the search was illegal. The Division Bench of this Court, held as
under :-
"15. We have therefore no hesitation in upholding the
submission of the learned counsel for the appellant on
this aspect of the case. We hold that the search was
effected by a person unauthorised to effect the search
under the law. We hold that the trial of the accused was
vitiated as a result of the said unauthorised illegal search.
It must be stated in the passing that on this aspect of the
case the learned counsel for the appellant also relied on
the observations made by the Division Bench of this Court
in the case of Ramchandra Tolaram Khatri and another v.
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The State reported in AIR 1956 Bombay 287. In this case,
it was held by the Court that merely because the police
took the panchas with themselves before the raid, the
panchas do not become members of the raiding party and
cannot be looked upon as partisan witnesses".
8 The Division Bench in case of Rolf Michael (supra) made
reference to the notification authorizing the officers of the Police
Department in the State of Goa, in exercise of power conferred
u/s.42 of the NDPS Act and the notification dated 11/2/1986,
authorized all Officers not below the rank of Assistant Sub
Inspector of Police in the Police Department.
Dealing with the situation where the search was carried
out by the Head Constable one Mr.Mayekar, though in presence
of PSI, the Division Bench arrived at the following conclusion.
"15 We, therefore, have no hesitation in holding that the
search by Mayekar, the Head Constable, was
unauthorized since he was not empowered to conduct the
search under Section 42 of the Narcotic Drugs And
Psychotropic Substances Act and consequently the search
was illegal. Since the search was illegal, the trial was
vitiated and conviction based on such trial cannot be
sustained and has to be set aside, which we hereby do. In
view of our finding on this point, we think it unnecessary
to go into the other aspects canvassed by the learned
Senior Counsel appearing for the accused"
With the aforesaid observation, the Criminal Appeal was
allowed and the judgment and order of conviction and sentence
passed by the Special Judge, came to be set aside.
.. Since, there is no dispute about the factual aspect before
me by applying the legal position to the effect that the search is
carried out by an unauthorized officer, I am prima facie satisfied
that there are reasonable grounds for believing that the search
being illegal, and the applicant is not guilty of the offence and in
absence of any antecedents being attributed to him, he is not
likely to commit the offence in future.
Recording that there is a clear breach of Section 42(1) of
the NDPS Act, the applicant deserve his release on bail."
(emphasis supplied by me)
8. Learned APP made an attempt to distinguish the decision
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relied by the learned counsel for the applicant. He would submit
that in that case it was only Police Naik who had carried out the
search, whereas, in the present case, the PSI along with the
Police Naik carried out the search.
9. In my opinion, having regard to the language of section 42
of the NDPS Act, only the officers mentioned therein are
empowered to carry out the search. It may be that the PSI was
authorised, but the search was also carried out by the Police
Naik. The Police Naik was not authorised to carry out the search.
Prima facie, in my opinion, the search carried out also by one of
the official (Police Naik) who was not authorised, renders the
search illegal. These observations are resitricted for considering
the application for bail. I am, prima facie, satisfied that there
are reasonable grounds for believing that the applicant is not
guilty of the offence.
10. Apart from what is observed above, I find that there are no
criminal antecedents reported against the applicant and
therefore, it is unlikely that he will commit the same offence in
future. The applicant is in custody since 18/05/2021 for a period
of more than 1 year and 8 months, without the possibility of the
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trial concluding any time soon. The applicant, therefore, can be
enlarged on bail by imposing stringent conditions. Hence, the
following order.
ORDER
(a) Applicant- Aarif Akram Shaikh in connection with C.R. No.I-392 of 2021, registered with Kashimira Police Station, shall be released on bail, on his furnishing P.R. Bond of Rs.50,000/- with one or more local sureties in the like amount;
(b) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing the facts to Court or any Police Officer. The applicant shall not tamper with evidence;
(c) On being released on bail, next Saturday onwards, the applicant shall report to the concerned police station twice a month, on alternate Saturdays, between 11.00 a.m. and 1.00 p.m;
(d) On being released on bail, 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.
11. The application stands disposed of.
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