Salauddin Abdul Hussain Shaikh @ Bablu Nepali v. State Of Maharashtra

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION BAIL APPLICATION NO. 2961 OF 2024 Salauddin Abdul Hussain Shaikh @ Bablu Nepali ...Applicant

Versus

The State of Maharashtra

...Respondent

***  Mr. Ashwini Achan a/w Mr. Taraq Sayed, for the Applicant.  Mr. Tanveer Khan, APP for Respondent - State.  Mr. Dhananjay Y. Chavan, API, Mumbra Police Station. *** CORAM : MANISH PITALE, J.

DATE : 22nd August, 2024.

P. C. :

1.

Heard, Ms. Ashwini Achan, learned counsel for the applicant and Mr. Tanveer Khan, the learned APP for the State. 2.

The applicant was arrested in the present case on 11.07.2023 in connection with First Information Report No.0714 of 2023 registered on the same date at Police Station Mumbra, District Thane, for offence under Sections 8(c) and 22(c) read with 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (NDPS Act).

3.

It is alleged that the applicant was found in possession of commercial quantity of contraband Mephedrone. The investigation was completed and charge-sheet was filed.

4.

The learned counsel for the applicant submits that perusal of the charge-sheet and the documents filed therein demonstrates that in the present case there is total non compliance of mandatory requirement of Section 52A of the NDPS Act. It is submitted that this itself creates a strong ground for the applicant to claim that eventually he will not be convicted for the alleged offfences. It is submitted that the entire prosecution case stands vitiated due to non compliance of the mandatory requirement of Section 52A of the NDPS Act. In this regard, attention of this Court is invited to the trap panchanama, as also the documents whereby the samples seized at the spot were sent for chemical analysis. It is submitted that the samples were directly sent after delay of about 20 days and that too without intervening mandatory procedure contemplated under Section 52A of the NDPS Act. On this basis, this Court may consider enlarging the applicant on bail. 5.

On the other hand, learned APP submitted that the applicant has criminal antecedents pertaining to offences under the Indian Penal Code. The CA report has confirmed the fact that contraband was indeed Mephedrone. But, the learned APP is unable to demonstrate as to how requirement of Section 52A of the NDPS Act, was complied with in the present case. 6.

The Supreme Court in the case of Union of India Vs. Mohanlal and another1, in the context of mandatory requirement under Section 52A of (2016) 3 SCC 379

the NDPS Act, while discussing the aspect of sampling and certification, held as follows :

"15.

It is manifest from Section 52A(2)(c) (supra) that upon seizure of the contraband the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.

16.

Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct. 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 52A(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. 18.

Be that as it may, a conflict between the statutory provision governing taking of samples and the Standing 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 reexamine the matter and take suitable steps in the above direction.

19.

Mr. Sinha, learned Amicus Curiae, argues that if an amendment of the Act stipulating that the samples be taken at the time of seizure is not possible, the least that ought to be done is to make it obligatory for the officer conducting the seizure to apply to the Magistrate for drawing of samples and certification etc. without any loss

of time. The officer conducting the seizure is also obliged to report the act of seizure and the making of the application to the superior officer in writing so that there is a certain amount of accountability in the entire exercise, which as at present gets neglected for a variety of reasons. There is in our opinion no manner of doubt that the seizure of the contraband must be followed by an application for drawing of samples and certification as contemplated under the Act. 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 (supra).

lackadaisical enforcement of the laws and procedures and cavalier manner in which the agencies and at times Magistracy in this country addresses a problem of such serious dimensions."

7.

Perusal of the above quoted portion of the judgment clearly indicates that the procedure contemplated under Section 52A of the NDPS Act, is mandatorily required to be followed. It is a procedure to ensure and safeguard the sampling, certification and transport of the alleged contraband for chemical analysis to the concerned laboratory. This procedure indeed goes to the root the prosecution case. Non compliance thereof, therefore, indicates that the applicant in the present case has indeed made out a strong prima facie case in his favour. There are reasonable grounds to believe that the applicant may not be held guilty in the present case. Hence, rigors of Section 37 of the NDPS Act, are also satisfied. There is nothing to indicate that the mandatory procedure under Section 52A of the NDPS Act, was indeed complied with. 8.

Hence, on this short ground the present application deserves to be allowed.

9.

Accordingly, the application is allowed in the following terms : (A) The applicant shall be released on bail in connection with FIR No.714 of 2023 registered on the same date at Police Station Mumbra, District Thane for offence under

Sections 8(c) and 22(c) read with 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985, he shall be released on bail on furnishing P.R. Bond of 50,000/- ₹ and one or two sureties in the like amount to the satisfaction of the Trial Court.

(B) The applicant shall report to the Police Station Mumbra, District Thane, on first Monday of every month between 10:00 a.m. and 12:00 noon, during the pendency of the trial.

(C) The applicant shall not tamper with the evidence in any manner. He shall not influence the informant, witnesses or any other persons concerned with the case. (D) The applicant shall attend the proceedings before the Trial Court on every date, except when exempted, for reasons to be recorded in writing.

10.

Needless to say, violation of any of the aforesaid conditions may lead to cancellation of the present order.

11.

It is also clarified that the observations made in this order are limited to the disposal of the present bail application and the Trial Court shall proceed further in the matter without being influenced by the observations

made hereinabove.

12.

The application is disposed of.

(MANISH PITALE, J.)