Bombay High Court
Ashok Manik Mhetre vs The State Of Maharashtra And Anr on 15 July, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:27784
1-BA-4261-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
VISHAL BAIL APPLICATION NO.4261 OF 2021
SUBHASH
PAREKAR
Digitally signed by
VISHAL SUBHASH
PAREKAR
Ashok Manik Mhetre ...Applicant
Date: 2024.07.15
19:43:45 +0530 vs.
The State of Maharashtra and Another ...Respondents
Ms. Zehra Charania, for the Applicant.
Smt. Mahalaxmi Ganapathy, APP, for the Respondent/State.
CORAM : N. J. JAMADAR, J.
RESERVED ON : JULY 04, 2024
PRONOUNCED ON : JULY 15, 2024
P.C.:
1. Heard the learned counsel for the parties.
2. The applicant, who is arraigned in NDPS Special Case No.23 of
2021 arising out of CR No.4 of 2021 registered with Sakinaka police
station for the offences punishable under sections 8(c), 20(b)(ii)(C)
and 29 of the Narcotic Drugs and Psychotropic Substances Act,
1985 (NDPS Act, 1985) has preferred this application to enlarge
him on bail.
3. On 14th January, 2021 while Sakinaka police were on
patrolling duty, an intimation was received that ganja was stored in
R.No. 103, First floor, Shri Samarth Building, Building 10/H,
Sangharsh Nagar, SRA, Chandivali, Mumbai. After complying with
the procedural requirements, Sakinaka police conducted a raid.
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When the police party reached in front of Room No. 103, the
applicant fled away, after noticing the police party. In the said Room
No. 103, 10 gunny bags containing flowering and fruiting tops of
cannabis were found. The contraband substance weighed 345.375
kgs. The samples were collected.
4. The applicant came to be arrested. During the course of
investigation, it transpired that the contraband substance was
transported to the said room in an auto-rickshaw. On the basis of
the images in CCTV footages, the co-accused were apprehended. The
applicant also made a discovery leading to recovery of two nilon
bags containing ganja at R.No. 206, Om Namo Shivay Society,
Sangharsh Nagar, Chandivali. The contraband weighed 50.177 kgs.
The second drugs cache was also seized and samples were collected.
5. Ms. Zehra Charania, learned cousnel for the applicant
submitted that the search and seizure is completely vitiated for
non-compliance of the mandatory provisions contained in section
42 of the NDPS Act, 1985. Since the search was conducted after
sunset and before sunrise, it was incumbant upon the officer to
obtain a search warrant or authorization. Neither such warrant or
authorization was obtained, nor the material on record indicates
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that the officer had recorded reasons for conducting search without
such warrant or authorization. Secondly, it was submitted that the
search and seizure suffers from serious infirmities as the seizure
panchanama indicates that the samples were collected from three
packets only. Those samples, therefore, cannot be said to be
representative samples of entire bulk allegedly recovered from the
possession of the applicant. Thirdly, there is a clear breach of the
provisions contained in section 52A of the NDPS Act, 1985 as the
CA report is based on analysis of the samples which were collected
at the time of seizure. Therefore, the applicant deserves to be
enlarged on bail.
6. It was further submitted that this Court has released Abid
Haniff Qureshi (A3), a co-accused, by an order dated 6 th May, 2024.
While releasing the said co-accused on bail, this Court had adverted
to the infirmities in the sampling and the proceedings under Section
52A of the NDPS Act, 1985. The applicant is, therefore, entitled to
the same dispensation.
7. The learned APP resisted the prayer for bail. It was submitted
that the applicant cannot claim parity with Abid Qureshi (A3) as a
huge quantity of Ganja i.e. 345.375 kg. was found stored in Room
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No.103, which was in the possession of the applicant. Secondly, the
applicant made discovery leading to recovery of further contraband
substance to the tune of 50.117 kg. Thirdly, there is material in the
form of CCTV footage and the transcript of the conversation
between the applicant and the co-accused which indicates that the
applicant was the principal confederate in the conspiracy.
8. The learned APP countered the submissions on behalf of the
applicant on the aspect of the non-compliance of the provisions
contained in Section 42 of the NDPS Act, 1985. It was urged that
the information note dated 14th January, 2021 (page 81) evidences
due compliance with the mandate contained in Section 42 of the
NDPS Act, 1985. As regards the alleged non-compliance of the
mandate contained in Section 52A of the NDPS Act, 1985, the
learned APP submitted that the said aspect cannot be considered at
the stage of bail. That would be a matter for consideration at the
trial.
9. Evidently, a huge quantity of the contraband substance was
recovered in the raid conducted at Room No.103. There is material
to show that the applicant exercised dominion over Room No.103
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and was allegedly seen in the images in the CCTV footage. It is also
true that there is material to indicate that pursuant to the
disclosure statement made by the applicant further 50.277 kg.
ganja was recovered.
10. In the backdrop of this material, the challenges to the
prosecution based on the non-compliance of the mandatory
provisions contained in NDPS Act, 1985 are required to be
appreciated. To begin with, non-compliance of the provisions
contained in Section 42 of the NDPS Act, 1985.
11. The communication dated 14th January, 2021 (page 81),
indicates that the officer, who had received the intimation had
taken down the information into writing and communicated the
same to his immediate official superior. However, the reliance
placed by the learned APP on the said communication to repel the
challenge as regards the non-compliance of the second proviso to
sub- section (1) read with sub-section (2) of section 42 of the NDPS
Act, 1985 does not appear to be well founded. Indisputably, the raid
was conducted after sunset and before sunrise. It is not the case
that a search warrant or authorization had been obtained. Nor does
it appear that the officer had recorded reasons that the search
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warrant or authorization could not have been obtained without
affording opportunity for the concealment of the evidence or
facilitate the escape of the offenders. The information note dated
14th January, 2021 (page 81) is conspicuously silent about the
recording of the grounds of such belief. Prima facie, there appears
non-compliance of the mandate contained in Section 42 of the NDPS
Act, 1985.
12. Secondly, the aspect of sampling also does not appear free
from infirmities. The seizure panchnama records that 10 nylon
gunny bags contained 151 packets. Each of those packets contained
ganja. Out of them, only three packets were opened and samples of
50 gram were collected therefrom. Those samples were labelled A1,
A2 and A3. Prima facie, it does not appear that the empowered
officer bunched the packets/containers in lots and thereafter drawn
representative sample from each lot.
13. In the case of Venkatesh Shiva Permal V/s. The State of
Maharashtra1 I had an occasion to consider the aspect of mixing of
the contents of different packets/containers and then collecting
samples. After adverting to the provisions contained in the
Standing Instructions No.1/88 and Standing Order No.1/89, the
1 BA No.3784 of 2023 dt. 23-01-2024
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judgment of the Supreme Court in the cases of Union of India V/s.
Bal Mukund and Ors.2 and Sumit Tomar V/s. State of Punjab3 and
the decision of the Delhi High Court in the case of Amani Fidel Chris
V/s. Narcotics Control Bureau4, in the case of Venkatesh Shiva
Permal (Supra), it was observed as under :
"34. As noted above, sub-clause (b) and (e) of the
Standing Instructions 1/88 and sub-clauses 2.5 and
2.8 of the Standing Order 1/89 envisage bunching of
packets/ containers in lots and thereafter, drawing of
representative sample from each packet / container of
that lot and mixing together to make a composite
whole from which the samples are drawn for that lot.
However, the principal condition is that the officer
effecting the seizure must find that the
packets/containers seized together are of identical
size and weight bearing identical marking and
contents of each packet give identical results on colour
test by drug identification kit, and, thus, conclusively
indicate that the packages are identical in all respects.
35. Evidently, the underlying object of the
Instructions is to ensure that the sample which is
collected represents the bulk, unmistakably.
Invariably, in pursuance of the provisions of the Act,
and the Drug Disposal Rules, the bulk is disposed.
When a person is sought to be fastened with liability
for possessing a particular quantity of contraband, in
bulk, on the basis of the sample collected, the Court
ought to have the assurance that the sample so
collected represented the entire bulk. The insistence
2 Cri. Appeal No.1397 of 2007 dt. 31/03/2009
3 (2013) 1 SCC 395
4 Cri. Appeal No.1027 of 2015
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on collecting samples from each of the packets and
containers stems forms this objective."
14. Prima facie, it appears that the empowered officer had opened
only three packets and drawn samples therefrom. There were
allegedly as many as 151 packets. It does not appear that the
empowered officer had bunched the packets/containers in lots, and,
thereafter, drawn representative sample from each lot. Thus,
whether the applicant can be fastened with the liability for
possessing the contraband substance of the quantity, as alleged by
the prosecution, where the samples do not appear to be, prima facie,
representative, would warrant adjudication at the trial. To put it in
other words, the aspect of sampling is not free from infirmities.
15. Evidently, the aforesaid three samples A1, A2 and A3 were
forwarded for analysis to the CA under the forwarding letter dated
16th January, 2021. The CA report (page 82) indicates that the said
samples contained ganja and the substance fell under Section 2(iii)
(b) of the NDPS Act, 1985. Conversely, it does not appear that the
samples were drawn before the learned Magistrate during the
course of inventory under Section 52A of the NDPS Act, 1985.
16. Even in respect of the contraband substance allegedly
recovered pursuant to the discovery made by the applicant, the
same method of collecting the samples at the time of seizure
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appears to have been followed. The seizure memo (page 46 and 47)
records that two samples of ganja (B1 and B2) were collected at the
time of the seizure itself. The forwarding letter dated 10 February
2021 (page 88) indicates that the very same samples B1 and B2)
were forwarded for analysis to the chemical analyser.
17. It is in the aforesaid context, while releasing the co-accused
Abid Qureshi, on bail, this Court had observed as under:
"11. Secondly, the forwarding letter (page-99)
indicates that the sample of the substance recovered
from the applicant (C-1 and C-2) were forwarded to CA
on 10th February 2021. The CA report dated 15th
November, 2021 indicates that the analysis was based
on the samples received on 10th February, 2021.
Undisputedly the CA report is based on the analysis of
the samples collected at the time of seizure.
Conversely, the inventory panchanama does not
reveal that samples were collected before the
Magistrate and thereafter samples were forwarded to
the analysis.
12. In the aforesaid context, Mr. Kamath placed a
strong reliance on three recent Supreme Court
judgments and orders which emphasise that the
compliance of the provisions contained in Section52A
is mandatory. In the case of Yusuf @ Asif vs. State
(Criminal Appeal No.3191/2023), the Supreme Court
after adverting to the provisions of Section 52A of the
NDPS Act, 1985 and its earlier decision in the case of
Union of India vs. Mohanlal and Anr .[(2016) 3 SCC
379] enunciated the law, inter alia, as under:
"12. A simple reading of the aforesaid provisions,
as also stated earlier, reveals that when any
contraband/narcotic substance is seized and
forwarded to the police or to the officer so
mentioned under Section 53, the officer so referred
to in sub section (1) shall prepare its inventory
with details and the description of the seized
substance like quality, quantity,mode of packing,
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numbering and identifying marks and then make
an application to any Magistrate for the purposes
of certifying its correctness and for allowing to
draw representative samples of such substances in
the presence of the Magistrate and to certify the
correctness of the list of samples so drawn.
13. Notwithstanding the defence set up from the
side of the respondent in the instant case, no
evidence has been brought on record to the effect
that the procedure prescribed under sub-sections
(2), (3) and (4) of Section 52A of the NDPS Act
was followed while making the seizure and
drawing sample such as preparing the inventory
and getting it certified by the Magistrate. No
evidence has also been brought on record that the
samples were drawn in the presence of the
Magistrate and the list of the samples so drawn
were certified by the Magistrate. The mere fact that
the samples were drawn in the presence of a
gazetted officer is not sufficient compliance of the
mandate of subsection (2) of Section 52A of the
NDPS Act.
........
15. In Mohanlal's case, the apex court while
dealing with Section 52A of the NDPS Act clearly
laid down that it is manifest from the said
provision that upon seizure of the contraband, it
has to be forwarded either to the officer-in- charge
of the nearest police station or to the officer
empowered under Section 53 who is obliged to
prepare an inventory of the seized contraband and
then to make an application to the Magistrate for
the purposes of getting its correctness certified. It
has been further laid down that the samples drawn
in the presence of the Magistrate and the list
thereof on being certified alone would constitute
primary evidence for the purposes of the trial.
16. In the absence of any material on record to
establish that the samples of the seized contraband
were drawn in the presence of the Magistrate and
that the inventory of the seized contraband was
duly certified by the Magistrate, it is apparent that
the said seized contraband and the samples drawn
therefrom would not be a valid piece of primary
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evidence in the trial. Once there is no primary
evidence available, the trial as a whole stands
vitiated".
(emphasis supplied)
13. In the case of Simarnjit Singh vs. State of Punjab
(2023 SCC OnLIne SC 906), the Supreme Court again
adverted to the decision in the case of Mohanlal (supra)
and considering the facts in the case of Simarnjit
(supra), observed that the act of PW-7 of drawing
samples from all the packets at the time of seizure is
not in conformity with the law laid down by the
Supreme Court in the case of Mohanlal (supra). This
creates a serious doubt about the prosecution's case
that substance recovered was a contraband.
14. In the latest pronouncement in the case of
Mohammed Khalid and another vs. The State of
Telangana (Criminal Appeal No(s).1610/2023,
dtd.1/3/2024), the Supreme Court observed n emphatic
terms that since no proceedings under Section 52A of
the NDPS Act, 1985 were undertaken by the
Investigating Officer for preparing an inventory and
obtaining samples in presence of the jurisdictional
Magistrate, the FSL report is nothing but a waste paper
and cannot be read in evidence.
15. Since Mohanlal (supra) constitutes the edifice of the
aforesaid enunciation, it may be apposite to extract the
observations of the Supreme Court in paragraph 17 of
the judgment in the case ofMohanlal (supra), which
read as under:
"17. The question of drawing of samples at the
time of seizure which, more often than not, takes
place in the absence of the Magistrate does not in
the above scheme of things arise. This is so
especially when according to Section 52-A(4) of
the Act, samples drawn and certified by the
Magistrate in compliance with sub-section (2) and
(3) of Section 52-A above constitute primary
evidence for the purpose of the trial. Suffice it to
say that there is no provision in the Act that
mandates taking of samples at the time of seizure.
That is perhaps why none of the States claim to be
taking samples at the time of seizure. Be that as it
may, a conflict between the statutory provision
governing taking of samples and the standing
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order issued by the Central Government is evident
when the two are placed in juxtaposition. There is
no gainsaid that such a conflict shall have to be
resolved in favour of the statute on first principles
of interpretation but the continuance of the
statutory notification in its present form is bound
to create confusion in the minds of the authorities
concerned instead of helping them in the
discharge of their duties. The Central Government
would, therefore, do well, to re-examine the
matter and take suitable steps in the above
direction.
(emphasis supplied)
16. The material on record reveals infirmity in
the sampling and proceedings under section 52A
of the NDPS Act, 1985. Thus, the prosecution will
have to surmount the challenge of non
compliance of section 52A of the NDPS Act in
letter and spirit and therefore, I am inclined to
hold that a substantial probable cause is made
out to believe that the accused may not be guilty
of the offences for which he has been arraigned.
18. The submission on behalf of the applicant based on long
period of incarceration also appears to carry substance. The
applicant was arrested on 14th January, 2021. The applicant has
been in custody for more than three and half years. It is unlikely
that the trial can be concluded within a reasonable period. It is trite
that the statutory restrictions in the matter of grant of bail like the
one contained in Section 37 of the NDPS Act, 1985, melt down in
the face of such long period of incarceration without a real prospect
of conclusion of the trial. (Union of India vs. K.A. Najeeb5).
5 (2021) 3 SCC 713.
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19. A useful reference can also be made to an order passed by the
Supreme Court in the case of Rabi Prakash vs. The State of Odisha 6,
wherein the Supreme Court observed as under:
"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 NDPS Act."
20. I have perused the report which enumerates the cases
registered against the applicant. The applicant has been released
on bail in CR No.15/2021. The order indicates that the applicant
was arraigned therein on the basis of the statement of the co-
accused. I find substance in the submission of the learned Counsel
for the applicant that CR No.750/2022 has no causal connection
with the offences punishable under NDPS Act, 1985. Though, it is
alleged that CR No.460/2017 is registered against the applicant at
Hayat Nagar Police Station in the State of Telangana, under the
NDPS Act, the nature of the accusation is, not divulged.
21. The aforesaid being the nature of the antecedents of the
applicant, I am impelled to hold that the Court may be justified in
recording a finding that the applicant may not indulge in identical
6 Special Leave to Appeal (Cri) No.4169/2023, dtd.15/9/2023.
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offences, if released on bail.
22. I am, therefore, inclined to exercise discretion in favour of the
applicant.
Hence the following order:
:ORDER:
(i) Application stands allowed.
(ii) The Applicant be released on bail in NDPS Special Case
No.23 of 2021 arising out of CR No.4 of 2021 registered with Sakinaka Police Station, Mumbai, on furnishing a PR bond in the sum of Rs.1,00,000/- and one or two sureties in the like amount to the satisfaction of the Special Court.
(iii) The applicant shall mark his presence before Sakinaka Police Station, Mumbai, on the first Monday of every month between 10.00 am to 12.00 noon for a period of three years or till the conclusion of the trial, whichever is earlier.
(iv) The applicant shall not tamper with the prosecution evidence. 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 the Court or any police officer.
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(v) 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.
(vi) The applicant shall not indulge in identical activities for which he has been arraigned in this case.
(vii) The applicant shall regularly attend the proceedings before the jurisdictional Court.
(viii) 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 co-accused. The trial Court shall not be influenced by any of the observations made hereinabove.
Application disposed.
(N. J. JAMADAR, J.)
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