Anwar Ali Abid Ali Khan v. State Of Maharashtra

1/19 907 WP-3504-24.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

MANDIRA MILIND SALGAONKAR MILIND SALGAONKAR Date: 2024.12.18 23:18:52 +0530 CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.3504 OF 2024 Anwar Ali Abid Ali Khan ..

Petitioner

Versus

State of Maharashtra ..

Respondent ...

Mr.Ayaz Khan with Ms.Zehra Charania for the Petitioner. Mr.H.S.Venegavkar, Public Prosecutor with Mrs.M.M.Deshmukh, A.P.P. for the State/ Respondent. Mr.S.V.Karkar, API attached to ANC, Crime Branch, Mumbai, present.

...

CORAM: BHARATI DANGRE & MANJUSHA DESHPANDE, JJ.

DATED : 29th NOVEMBER, 2024 JUDGMENT (Per Bharati Dangre, J.) :- 1.

Petitioner-Anwar Ali Abid Ali Khan came to be arrested by ANC, Bandra Unit on 25/01/2024 in connection with C.R.No.07 of 2024, which invoked Sections 8(c), 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "NDPS Act").

Pursuant to the arrest, his custody was granted to the police for the purpose of investigation and, thereafter, he was remanded in judicial custody.

The present Petition is filed by the Petitioner under Article 226 of the Constitution of India, where it is pleaded

2/19 907 WP-3504-24.odt that when his arrest was effected, the grounds of arrest were not communicated to him in writing, which has violated his right under Article 21 and Article 22(1) of the Constitution of India, as he can only be prosecuted as per the procedure established by law.

2.

We have heard learned counsel Mr.Ayaz Khan with Ms.Zehra Charania for the Petitioner and learned Public Prosecutor Mr.Hiten Venegavkar with Mrs.M.M.Deshmukh, learned A.P.P. for the State.

3.

Before we appreciate the grounds raised in the Petition in support of the relief claimed that the arrest of the Petitioner be declared as unlawful and the consequent remand orders be declared as null and void, we must appreciate the facts, in the backdrop of which the aforesaid relief is sought in the present Petition.

4.

It is the case of the prosecution that while patrolling on 24/01/2024, the officers of ANC, Bandra found two persons in suspicious circumstances on Maulana Shaukat Ali Road, Grant Road, Mumbai at 20.30 p.m. The information was transmitted to the Senior Police Inspector and two panchas were arranged. When the suspects were enquired, they disclosed their names as Abdul Rahim Usman Shaikh and Muhibbul Haq Ziaul Haq Khan. On apprising them about their right under Section 50 of the NDPS Act, search was taken and 10 grams of MD was seized from Abdul Rahim.

3/19 907 WP-3504-24.odt Similar procedure being adopted in respect of Muhibbul, the other person, 155 grams of MD was found in his possession and on following the procedure prescribed under the NDPS Act, it was seized and sealed.

Investigation with the two accused, who were arraigned as Accused Nos.1 and 2, lead to Accused No.3, namely, Haseeb Hanif Ibrahim from whom the contraband was acquired by the Accused Nos.1 and 2.

As per the information received, Accused No.3 was apprehended and on apprising him of his right under Section 50 of the NDPS Act, his personal search lead to 75 grams of MD, which was seized.

Accused No.3 disclosed that he had procured the contraband from Anwar Ali Abid Ali Khan (the present Petitioner) and he sell contraband at Clay Road, Nagpada on the footpath in front of Bata Showroom. The officers thereafter nabbed the present Petitioner alongwith Accused No.5-Ahmed Raza Mohammad Mustak Shaikh.

From the nylon bag in the hand of the Petitioner, 495 grams of MD was seized.

The Petitioner directed the investigating agency to the source of the contraband i.e. one Shareeb Ansari, Accused No.6, who was found in the company of Accused No.7, was also arrested and contraband was seized from them. 5.

The panchnama of the events mentioned above was concluded at 01.45 hrs. on 25/01/2024 and the FIR was registered. The seized muddemal was deposited at ANC

4/19 907 WP-3504-24.odt godown and on 01/02/2024, the inventory panchnama under Section 52-A was carried out before the Magistrate and the samples were sent to FSL on 02/02/2024.

During the course of investigation, statements of witnesses were recorded and on completion of investigation, prosecution filed the charge-sheet in Special Case No.1358 of 2024.

6.

It is in this background, the Petitioner has alleged violation of his right under Article 22 of the Constitution of India, by submitting that the grounds of arrest of the accused were not communicated to him and, therefore, by relying upon the decisions of the Apex Court in Pankaj Bansal Vs. Union of India & Ors.1 and Prabir Purkayastha Vs. State (NCT of Delhi)2, his arrest and detention is liable to be declared as illegal. In addition, it is also urged before us by Mr.Khan that there is non-compliance of Sections 52 and 52-A of the NDPS Act.

We had made it clear to Mr.Khan that for aforesaid violation, the arrest of the Petitioner cannot be declared as illegal and he has to adopt appropriate remedy available to him and we can only look into the contention of the Petitioner that his arrest is in violation of Article 22 of the Constitution of India and Section 50 of the Code of Criminal Procedure, 1973. 7.

Contesting the submissions advanced by Mr.Khan, it is the submission of Mr.Venegavkar, the learned Public Prosecutor, that the Petitioner who was apprehended, was (2024) 7 SCC 576 (2024) 8 SCC 254

5/19 907 WP-3504-24.odt found in possession of the contraband, which came to be seized after apprising him of his right under Section 50 of the NDPS Act. According to him, upon the receipt of secret information, the accused persons were apprehended, one leading to another and from each of the accused, the contraband has been seized. By placing reliance upon the detailed affidavit filed by the Assistant Police Inspector, ANC Cell, Bandra Unit on 29/08/2024, Mr.Venegavkar has invited our attention to the panchnama, which was drawn in regards to the search and seizure from the accused persons. The panchnama, which was drawn on 24/01/2024 at 21.05 hrs. was concluded on 25/01/2024 at 01.45 hrs.

The affidavit further record that eight copies of the panchnama were made and one copy was handed over to each of the apprehended person and their signatures were obtained in form of acknowledgment. The seven accused persons alongwith the seized contraband as well as the seized items, including the mobile phones were taken into custody and presented before the Police Inspector at Cuff Parade office. He verified the sealed exhibits and affixed his signature on the sealed packets imparting instructions to take legal action. Further, it is the submission of Mr.Venegavkar the the seized contraband was sampled and sent for analysis and its report was received, which has concluded that the substance, which was seized from the Petitioner is found to be Mephedrone and on completion of investigation, the chargesheet is filed, which contain the entire material collated against the accused to subject them to trial for acting in contravention of the provisions of the NDPS Act, 1985.

6/19 907 WP-3504-24.odt 8.

As regards the contention that the grounds of arrest were not communicated, the Investigating Officer has stated as under :- "10.

I say that the scheme of investigation prescribed under the NDPS act includes the procedure of investigation and therefore being a special enactment the procedure laid down in NDPS Act will prevail over general procedure code i.e. CrPC. Section 50 of CrPC therefore has to be read with section 50 of NDPS Act. 11.

I further say that the judgements of Apex Court proceeds on the footing that the fundamental rights guaranteed under the Constitution of India of the accused are of prime importance and therefore every possible case should be taken to ensure that the same complied with. In the light of this observations the Honorable Apex Court has laid down that the grounds of arrest of an accused should be provided to him in writing so that he is made aware as to why he is being arrested and furthermore he is not incapacitated from instructing his lawyer. In the light of this principle the document/panchanama prepared by the investigating agency under the section 50 of the NDPS Act 1985 fully mentions as to why the Petitioner/Accused is arrested.

If the principle on which the Apex Court has laid down the law is satisfied then, the nomenclature of the document should be taken into consideration. It is therefore submitted that the panchanama prepared by the investigating agency satisfies the aforesaid requirements as, the said document/panchanama was handed over to the petitioner/accused at the time of arrest and the same also contains signatures of the panchas and signature of petitioner/Accused no. 4 acknowledging the receipt of the same by him. Thus it cannot be said that petitioner accused was not aware as to what was the case against him and as to for what reason he was being arrested. The said document/panchnama is self-explanatory and the arrest of the petitioner/accused does not become illegal." 9.

In addition, it is also the specific stand adopted by the Respondent that before arresting the Petitioner, the Arrest Form was duly filled in, in presence of the two panchas and he signed on the Arrest Form, and, thereafter, the reasons for his arrest were explained to him and even he was made aware of the rights available to him pursuant to his arrest. In addition, the information about his arrest was give to his sister.

7/19 907 WP-3504-24.odt The Arrest Form dated 25/01/2024 is placed on record alongwith the affidavit as Exhibit C.

In addition, the Station Diary Entry No.06 of 2024 also record that the reasons of arrest and his right was informed to Accused No.4 i.e. the present Petitioner and guidelines issued by the Apex Court in D.K.Basu & Anr.Vs. State of West Bengal 3 are followed. The copy of the station diary entry is also annexed with the affidavit.

10.

It is by now a well settled position in law that the accused must be communicated the grounds of his arrest and in case of Pankaj Bansal (supra), the Apex Court, on taking note of Article 22(1) of the Constitution of India, reiterated the fundamental right guaranteed to the arrested person and focused its attention upon the mode of conveying information of the grounds of arrest, so as to make it meaningful. Recording that there is no valid reason as to why the copy of written grounds of arrest should not be furnished to the arrested person as a matter of course and without exception, it was held that it would be necessary henceforth, that a copy of written grounds of arrest is furnished to the arrested person as a matter of course.

The aforesaid view was further fortified in Prabir Purkayastha (supra), when the right to be aware of the grounds of arrest was considered to be an integral part of Article 22(1) of the Constitution of India and it is held that infringement of this right would vitiate the process of arrest and remand and mere fact that charge-sheet is filed in the AIR 1997 SC 610

8/19 907 WP-3504-24.odt matter, would not validate the illegality and unconstitutionality committed at the time arrest of the accused and grant of police custody remand.

11.

When the two authoritative pronouncements, which have been followed in catena of decisions and even by us, are carefully examined, the emphasis on communicating the 'grounds of arrest' is clearly discerned, as the communication of the grounds would enable the accused to defend himself against custodial remand and to seek bail.

In Prabir Purkayastha (supra), the Apex Court clearly distinguished between the 'reasons of arrest' and 'grounds of arrest', by setting out that the 'grounds of arrest' shall contain all such details in the hand of the Investigating Officer, which necessitated the arrest of the accused and the necessity for communicating these grounds is to convey to the arrested accused all basic facts on which he was being arrested, whereas the 'reasons for arrest' as indicated in the arrest memo are purely formal in character, namely, to prevent the accused person from committing any further offence; for proper investigation of the offence; to prevent the accused person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; to prevent the arrested person for making inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the Investigating Officer.

12.

Thus, the purpose of communicating the grounds of arrest have been considered as integral part of Article 22(1),

9/19 907 WP-3504-24.odt its object being making the accused aware about why he is being arrested and further these grounds would furnish him, an opportunity to defend the custodial remand and secure bail. When we examined the present case through the chargesheet which is placed before us, we are of the clear view that it constitute the 'grounds of arrest', leaving no ambiguity about the act committed by the present Petitioner for which he was arrested. The Petitioner is found in possession of contraband with clear evidence of his involvement, and by following the procedure prescribed under the NDPS Act, a special statute, the contraband was sealed and tested.

The NDPS Act, a special statute, is enacted with avowed purpose of making stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for forfeiture of property derived from, or used in illicit traffic in narcotic drugs and psychotropic substances. It prescribes stringent punishment for contravening any provisions of the Act or any rule or order made or condition of a licence granted by the State Government, which is empowered to permit, control and regulate the possession, transport, import inter-State, export inter-State, sell, purchase, consumption and use of various substances.

13.

The NDPS Act, a special enactment, has procedure prescribed under Chapter V, permitting entry, search, seizure and arrest by a particular ranking officer, if he has reason to believe from personal knowledge or information given by any

10/19 907 WP-3504-24.odt person that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under the Act has been committed and, thereupon, in exercise of such powers, it is permissible to seize such drug or substance and all material used in manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under the Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under the Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture. In addition, the officer is also authorised to detain and search and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under the Act.

In order to tackle with different contingencies, special provisions are included in Chapter V, like Section 43, which is a power of seizure and arrest in public place etc.. A power to stop and search conveyance is conferred under Section 49, if the Officer has reason to suspect that any animal or conveyance is, or is about to be, used for the transport of any narcotic drug or psychotropic substance in respect of which he suspects that any provision of this Act has been, or is being, or is about to be contravened.

In order to balance the drastic power of search and arrest, Section 50 of the Act mandates the Officer to take such person without unnecessary delay to the nearest Gazetted Officer of any Department or to the nearest Magistrate and the Gazetted Officer or the Magistrate before whom such person is

11/19 907 WP-3504-24.odt brought shall, if he sees no reasonable ground for search, forthwith discharge the person, but otherwise shall direct that search be made. The safeguards to be followed in case of personal search of an accused ensure that the power is not misused and it is imperative for the Officer carrying the search to apprise the person about his right under Section 50, before he carries out such search.

Chapter V-A of the Act also contain a special provision forfeiting the illegally acquired property and Section 52-A provide for disposal of seized narcotic drugs and psychotropic substances.

14.

It is in this background, we have perused the panchnama executed on 24/01/2024 by ANC, Mumbai in presence of the two panchas, a running panchnama which has commenced at 21.05 hrs., when two persons were suspected to be in possession of the contraband and the panchnama record the procedure followed when the substance was seized, from the two suspects after apprising them of their right under Section 50 of the NDPS Act. The two suspects led to the third accused from whom the contraband was recovered and he led to the fourth accused i.e. the present Petitioner. Haseeb Hanif Ibrahim, who led the Investigating Officer to the present Petitioner, has disclosed that he had procured 75 grams of MD from Anwar Ali i.e. the present Petitioner and he offered his whereabout, by informing that he can be found on Clay Road,Nagpada in front of Bata Showroom. At 22.45 hrs., the Investigating Officer alongwith the panchas and with three persons, who were apprehended, reached Clay Road and when

12/19 907 WP-3504-24.odt they stopped the vehicle at the distance, Haseeb Hanif Ibrahim pointed out to one person, who was present on the footpath in front of Bata Showroom and he was described to be Anwar, who was accompanied with one more person. The said two persons were apprehended with great caution and swiftness and on being asked, one of them was found to be the Petitioner, whereas the other person disclosed his name as Ahmed Raza Mustaq Shaikh.

The panchnama record that PI Chavan introduced himself to the two persons, who were accosted, and made them aware of their right under Section 50 of the NDPS Act, as he intended to carry their search. On declining to have the search being carried out in presence of the Magistrate or Gazetted Officer, their signatures were obtained on the necessary papers apprising them of their right. The search of the Petitioner led to a white nylon bag, which was found to contain a whitish coloured powder packed in a plastic polythene and when the Petitioner was asked about the said substance, he disclosed it to be Mephedrone (MD), a psychotropic substance and he was in possession of the same for sell. The powder, which was found in possession of the Petitioner, was weighed on the electronic weighing scale and it weighed 495 grams. The seized substance was sealed by affixing seal of PI, ANC, Mumbai.

In addition to the aforesaid substance, the search of the Petitioner led to rupees 600 and one mobile phone of Oppo Company with two SIM cards, which was also seized. The panchnama record that signature of the Petitioner-Anwar Ali was also obtained on Exhibit F.

13/19 907 WP-3504-24.odt It is the Petitioner, who led the investigating team to other accused, Shareeb Ansari, who was tracked in Agripada, near Fortune Grade Building and Mephedrone (MD) was also seized from him.

The panchnama is completed at 01.45 hrs. on 25/01/2024 and it bear the signature of the Investigating Officer as well as of two panchas. In addition, the signatures of the accused persons are also obtained on the said panchnama and as the affidavit record, the copies of the panchnama were prepared and the same were furnished to the persons, who were apprehended, which included the Petitioner. The Petitioner came to be arrested on 5.10 hrs. on 25/01/2024 and entry to that effect was taken into the Station Diary. He was accused of committing the offences under Sections 8(c), 22(c) and 29 of the NDPS Act, 1985. The Arrest/Surrender Form record his details and it also record that the information of arrest was given to his relative. The Arrest Form also record that the arrested person was taken into custody on 25/01/2024, after being informed about the grounds of arrest and his legal right.

He was produced before the Magistrate for remand. The extract of the Station Diary dated 25/01/2024, which is annexed with the affidavit of the Respondent, in great detail has recorded the events that had transpired upon the two persons being accosted, leading to five other, till the time when they were arrested by registering C.R.No.07 of 2024 invoking Sections 8(c), 22(c) and 29 of the NDPS Act and it also record that the information about their arrest has been given to their near relatives. On being produced before the

14/19 907 WP-3504-24.odt Magistrate at 4.00 p.m., taking into consideration the seriousness of the offence, as the contraband seized from them was of commercial quantity, and, since, the investigation was at initial stage, police custody of all the seven accused was granted till 31/01/2024, which was further extended and subsequently, the Petitioner came to be remanded in judicial custody.

15.

In light of the aforesaid circumstances, since we have noticed that it is Accused No.3, who led the investigating team to the present Petitioner, who was found on the spot as per the information provided and before effecting his search, the procedural requirement under the NDPS Act was complied with and from him, 495 grams of Mephedrone is seized and sealed by following the prescribed procedure. The samples of the same were drawn by taking the substance seized before the Magistrate and the Chemical Analyser Report has now analysed the substance to be 'Mephedrone'.

Upon the Petitioner being accosted, he was searched by apprising him of his right under Section 50 of the NDPS Act, and on serving the necessary intimation upon him, which he has duly accepted, the contraband was seized from him and it was sealed. Whatever transpired during the search and seizure is recorded in the panchnama on which the Petitioner has signed.

The Petitioner was present throughout the process, when he was searched and the psychotropic substance was seized from him and not only this, he led the investigating team to

15/19 907 WP-3504-24.odt another accused, who was searched on his information and was found to be in possession of contraband.

In the above narrated circumstances, we really wonder whether the Petitioner can plead that he is not communicated the grounds of arrest in writing. When he was specifically asked about what substance he is carrying, he disclosed it to be Mephedrone, which is a psychotropic substance and he was in possession of it for sell. The Petitioner was conscious about the possession of a prohibited substance and did not make any grievance in that regard, when the search and seizure was carried out.

The contraband seized from him being of commercial quantity, the chances of he securing bail are minimal and to short-circuit the process of applying for bail, he has chosen this path of claiming violation of his fundamental right under Article 22(1) of the Constitution on the pretext that the grounds of arrest are not communicated to him. Drawing of panchnama in his presence and he signing the panchnama and being served with a copy of the same, according to us, has rendered the necessity of furnishing the grounds of his arrest redundant because the factual basis for his arrest is already apparent to him. The grounds of arrest in such cases are self explanatory and we are of the clear view that non-communication of the grounds of arrest to the Petitioner, in no way has hampered his right to defend the remand, as his participation in the entire process of search and seizure, which is recorded with great detail in panchnama, which he himself has signed, obviate the need for he being furnished the grounds of arrest in writing.

16/19 907 WP-3504-24.odt Though Mr.Ayaz Khan makes a feeble attempt to submit that the substance which was seized from the Petitioner, upon being searched, was not tested by testing kit, according to us, can be a ground, which may assist him in securing bail, but definitely it does not vitiate the arrest.

16.

Mr.Khan vehemently pressed into service the observations of the Division Bench of this Court in Mr.Hanuman Choudhary Vs. The State of Maharashtra (Writ Petition (St) No.17755 of 2024 ) to which one of us (Justice Manjusha Deshpande) was a party.

We have carefully perused the judgment delivered on 25/10/2024 and upon its perusal, we must record that the observations made thereunder are of no succour to the Petitioner. The peculiar facts involved in the said decision would reveal that an F.I.R. came to be registered at Ravet Police Station for an offence under the NDPS Act against accused No.1-Rohit Surat Singh. He was apprehended by the Narcotic Drug Squad, which was patrolling near PimpriChinchwad and he admitted to be in possession of Mephedrone. His search lead to seizure of 24 grams of Mephedrone and he was charged under Sections 8(c) and 22(b) of the NDPS Act, 1985. During his police custody, he gave a memorandum statement and expressed his willingness to show the place from where he had obtained the prohibited substance. He led the officers to the petitioner, who was present in a shop owned by him. The petitioner, upon inquiry made by the police officer, admitted to be in possession of Mephedrone in his pant pockets. Upon the search being

17/19 907 WP-3504-24.odt carried out by following the necessary procedural safeguards in presence of panchas, 30 grams of Mephedrone was recovered.

The petitioner came to be arrested and produced before the Magistrate and his bail application was rejected by the Additional Sessions Judge, Vadgaon.

He approached this Court by alleging violation of his fundamental right of being informed about the grounds of his arrest and also on the ground that arrest was in breach of Section 50 of Cr.P.C. Reliance was placed on Pankaj Bansal (supra) and Prabir Purkayastha (supra) as well as the view taken by us in Mahesh Pandurang Naik Vs. State of Maharashtra (Writ Petition (St) No.13835 of 2024). 17.

On taking note of the necessary facts and the significant one being drawing of Memorandum Panchnama under Section 27 of the Evidence Act as per the statement given by accused No.1, when the team reached the petitioner and upon effecting his search, contraband was seized from him, the argument advanced on behalf of the petitioner was about noncommunication of the grounds of his arrest. The Detaining Authority adopted a stand that while arresting the petitioner, the seizure panchnama was drawn on the spot of incident and the reasons for enquiry were clearly communicated to him.

It was specifically urged by the A.P.P. that the requirement of furnishing grounds in writing is obliterated since the Memorandum Panchnama dated 26/03/2024 was

18/19 907 WP-3504-24.odt drawn and it was signed by the panchas and the petitioner himself. In short, the Respondent-Authority attempted to contend that the Memorandum Panchnama on which the signature of the petitioner was obtained is nothing short of communication of the grounds of arrest.

The Court has specifically inquired from the learned A.P.P. about the signature on the panchnama, as it could not be distinctly identified and the A.P.P. informed the Court that the Memorandum Panchnama, which was drawn at the instance of accused No.1, had the signature of the petitioner. It is in this background, the Court determined the issue whether the Memorandum Panchnama drawn at the instance of accused No.1-Rohit Surat Singh, during which the possession of drug by the petitioner has been revealed, can be equated with the communication of grounds of arrest and it answered the question in negative, by recording as below :- "19.

Considering the above explanation if we go through the memorandum statement of Accused No. 1, the first thing which strikes us is that, though it is the memorandum statement by Accused No.1, the signature of Accused No. 2 i.e. the present petitioner has been obtained on it. After going through the same, it does not contain the grounds of arrest for which the petitioner has been arrested. It does not meet the requirement of the provisions of various enactments as referred hereinabove and it fails to meet the requirement of the 'grounds of arrest', which has been explained in para 49 of the judgment in case of Prabir Purkayastha (supra).

It does not contain the information in writing to the petitioner, of the basic facts and the basis on which he is being arrested, so as to provide him an opportunity of defending himself against the custodial remand and seek bail. The memorandum panchanama form, contains details about statement made by the accused in presence of two witness while in custody, pursuant to which the procedure is undertaken by the Detaining Authority, at the instance of Accused No. 1, whereby he has taken the Detaining Authority to the place where Accused No. 2 (Petitioner) was conducting his business. The personal search of Accused No. 2 was taken, wherein 30 grams of Mephedrone (MD) drug was seized.

19/19 907 WP-3504-24.odt Authority pursuant to the memorandum panchanama, can by no stretch of imagination be termed as a communication or 'grounds of arrest' to the petitioner as contemplated in law." 18.

It is evident that a discovery panchnama under Section 27 at the instance of accused No.1 came to be signed by the petitioner and, therefore, the Court has rightly held that it would not amount to communication of grounds of arrest. 19.

Juxtaposing the facts in case of Hanuman Choudhary (supra) with the present case, it is search and seizure panchnama of the Petitioner, which is signed by him and which is attempted to be canvassed as 'grounds of arrest' and we agree with Mr.Venegavkar that in the aforesaid circumstances, the necessity of communicating the grounds of arrest in writing, when the Petitioner was found in possession of commercial quantity of Mephedrone upon the search being carried out after following the procedure prescribed, is obliterated.

The Petitioner definitely cannot take advantage of not adhering to the procedural formalities, which at times may take shape of a substantive right, when it comes to ensuring compliance of sub-clause (1) of Article 22, but definitely procedural right cannot override the substantive right and in a case like this, we would not secure his release on the technical ground that he was not communicated the grounds of arrest, since he was aware of the ground of arrest and its communication is nothing but an empty formality. For the reasons recorded above, finding no merit in the Petition, the same is dismissed.

(MANJUSHA DESHPANDE,J.) (BHARATI DANGRE, J.)