Bombay High Court
Rajesh @ Daya Ramesh Chauhan And Anr vs State Of Maharashtra on 18 April, 2023
Author: Bharati Dangre
Bench: Bharati Dangre
2023:BHC-AS:11660
1/8 ba 3140-22.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 3140 OF 2022
Rashid Aslam Shaikh .. Applicant
Versus
The State of Maharashtra .. Respondent
...
Mr. Ayaz Khan for the applicant.
Ms.P.N. Dabholkar, APP for the State.
PSI Shri A.S. Chavan from Naya Nagar police station.
CORAM: BHARATI DANGRE, J.
DATED : 18th APRIL 2023
P.C:-
1 This is a second Bail Application filed by the
applicant, pursuant to the first being withdrawn, when I had
expressed my disinclination to entertain the same.
2 The applicant is charged in Special Case
No.296/2021 filed against him by Police Sub Inspector, Naya
Nagar Police Station. He face accusation of being found in
possession of 60 gms of Mephedrone (M.D) and therefore, he has
been charged for the offence punishable u/s.8(c), 20, 22, 29 of
The Narcotic Drugs and Psychotropic Substances Act, 1985 (for
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short 'NDPS Act'). He came to be arrested on 7/1/2021 and is
presently incarcerated.
3 The case of the prosecution in the charge-sheet is to
the effect that on information being received by the concerned
police station, that on 7/1/2021 at about 6.45 hours, two persons
would come on the given place for selling Mephedrone,
accordingly a trap was laid and the applicant along with accused
no.2 were apprehended and they were found to be in possession
of 60 gms Mephedrone and 50 gms of charas.
4 The learned counsel Mr.Khan, while arguing the
application on the second count, would submit that the
procedural requirement of Section 50 is not adhered to, while the
applicant was apprehended and his submission is that the
requirement contemplated u/s.50 in respect of search and seizure,
which make it imperative for the Investigating Officer to permit
the accused to be searched in presence of the gazetted Officer or
the nearest Magistrate must yield the search illegal and it is the
submission of Mr.Khan that since the provisions of the NDPS Act
prescribe severe punishment on proof of possession of illicit
article/contraband, the legislature has struck a balance by
providing certain safeguards and the same should be strictly
adhered to.
Mr.Khan would place reliance upon the decision of
the Apex Court in case of Beckodan Abdul Rahiman Vs. State of
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Kerala, (2002) 4 SCC 299, to submit that in the given
circumstances, even when there was partial compliance of Section
50, the conviction was set aside by the Supreme Court, by
holding that the compliance of Section 50 of the Act, give an
option to a suspect for being searched in the presence of Gazetted
Officer or the Magistrate and when the accused is not apprised of
his right, nor any option is offered to him, the search cannot be
sustained in law. He would also rely upon the order passed by the
learned Single Judge (A.S. Gadkari, J) in Criminal Bail
Application No.592/2018, where the applicant was released on
bail by relying upon the decision of the Apex Court in case of
State of Rajasthan Vs. Parmanand and Anr, 2014 (2) SCC (Cri).
5 Further, my attention was invited to a portion of
panchnama regarding the search and seizure dated 7/1/2021 and I
passed the following order :-
"1 In an earlier round of the application, when the
applicant sought his release on bail, I expressed my
disinclination by taking note of the non-compliance of
Section 50 of the NDPS Act, since it was so recorded in
the panchnama.
In the second round, Mr.Khan has invited my
attention to the ultimate portion of the panchnama
dated 7/01/2021 and therefore, I asked learned APP to
produce the typed copy of he panchnama so prepared,
which is reported to have signed by Police Inspector
Kailas Barve and the panchas.
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2 The learned APP, on instructions of PI
Mr.Jitendra Vankoti, who is present in the Court,
inform that the panchnama was signed by Mr.Dilip
Salunke PI, Nayanagar Police Station, but the learned
APP state that he has retired now.
3 In these circumstances, it has therefore become
evident that the portion recorded in the panchnama is
an incorrect recording and there is no such document
prepared. Since the person, who signed the document,
has retired, he cannot be expected to swear an affidavit
to that effect and, I deem it appropriate to direct the
ACP, Navghar Division, Mira Bhayander, Vasai Virar,
Police Commissioner, shall file an affidavit after
ascertaining the facts of the case and pursuant to the
said affidavit, an appropriate inference would have to be
drawn, if it is found that the recording in the
panchnama is not truthful.
Let such affidavit be filed on or before
30/03/2023. List on 31/03/2023".
6 In furtherance of the same, an affidavit is filed by
Shashikant Bhosale, ACP, Navghar Division, Mira Bhayander,
Vasai, where a specific statement is made to the following effect :-
"6 I say that the record shows that the said
panchnama dated 07.01.2002 is as hand written and
was done in presence of Police Inspector, Shri Dilip
Salunkhe in which inadvertently it has been written
that "it is printed on a printer at Police Station and
Police Inspector Shri Kailas Barve signed it".
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7 It is pertinent to note that in the copy FIR
bearing No.13/2021, dated 07/01/2021, in which it is
clearly mentioned that the spot panchnama has been
done in presence of Police Inspector Shri Dilip
Salunkhe at the place of incident only and not at the
police station"
7 The learned APP Ms.Dabholkar concede to the fact
that there is incorrect recording in the ultimate portion of the
panchnama, and in fact, there is no print of the panchnama taken
on the portable printer nor it bear signature of PSI Kailas Barve
and the panchas.
8 When the panchnama is carefully perused, it bear the
signature of Dilip Salunke, PI, Naya Nagar police station, and
there is no reason why the name of Kailash Barve is mentioned in
the said panchnama. The panchnama dated 7/1/2021 is the
narration of two panchas and it make reference to PI Dilip
Salunke, but there is no reference of Kailas Barve and the entire
narration of the panchas is based on the instructions of Dilip
Salunke.
When the version of the panchas is carefully perused,
it is stated that the two accused persons are appraised of their legal
right by informing that they are entitled to be searched in
presence of the Magistrate if they desire to do so, and the
necessary arrangement can be made.
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9 The panchnama, therefore, reflect a partial
compliance of the right u/s.50 of the NDPS Act, to be searched in
presence of the Magistrate.
The communication of the right to the person who is about to be
searched is not a mere procedural formality, but it is an imperative
mandate provided by the legislature which would ensure that
there is no misuse of the powers by those who are implementing
the provisions of the Act, and since it was not informed to the
applicant that he has a right to be searched before the gazetted
officer also, prima facie, there is violation of Section 50 of the
NDPS Act, which would make the recovery of the alleged
contraband i.e. M.D, doubtful.
10 Apart from this, the approach of the prosecution is
evidently casual when the panchnama record that it was printed
on the portable printer and it was signed by PI Kailas Barve and
the panchas. Apart from this, a glaring lacuna which appear is the
timing of recording of the panchnama, which is shown to have
commenced at 7.25 hours and indeed on 9.00 hours, whereas
having looked at the First Information Report, the date and time
of registration of the FIR, is shown to be 9.45 hrs and the
information is shown to be received at 9.05 hours. Mr.Khan is,
therefore, perfectly justified in submitting that the C.R came to be
registered within five minutes of the completion of the
panchnama, which is practically impossible.
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The aforesaid lacunae which created doubt in the
version of the prosecution definitely warrant consideration and if
at all, it deserve the benefit of doubt, it must go in favour of the
applicant. This aspect was not pointed out at the time of hearing
of the first Bail Application and since this aspect goes to the root
of the matter, I have deemed it expedient to consider the same, at
the stage of second Bail Application.
11 In the wake of the above, and particularly when the
Assistant Commissioner of Police has admitted in the affidavit in
reply that a mistake was done by Police Inspector Dilip Salunke
while preparing a spot panchnama dated 7/1/2021, apologies are
expressed, I deem it appropriate to release the applicant on bail
subject to the following terms and conditions :-
ORDER
(a) The Applicant - Rashid Aslam Shaikh in connection with C.R.No..13/2021 registered with Navghar Police Station shall be released on bail on furnishing P.R. bond to the extent of Rs.25,000/- with one or two sureties of the like amount.
The applicant shall be released on cash bail of Rs.25,000/- in lieu of sureties for a period of six weeks. During the said period, the applicant shall arrange for the sureties.
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(b) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with facts of case so as to dissuade him from disclosing the facts to Court or any Police Officer. The Applicant should not tamper with evidence.
(c) The Applicant shall mark his attendance with the concerned police station on every Thursday once in a trimester.
(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, if there is any change.
( SMT. BHARATI DANGRE, J.) Tilak ::: Uploaded on - 19/04/2023 ::: Downloaded on - 20/04/2023 10:20:20 :::