Bombay High CourtBA/2251/2025disposed off

Samir Shahjahan Shaikh v. State Of Maharashtra

2025-08-25Hon'Ble Shri Justice Ashwin D. Bhobe5 pages

by ARUNA SANDEEP TALWALKAR Date:

2025.08.26 17:19:20 +0530 ARUNA SANDEEP TALWALKAR 14.BA2251.2025.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION CRIMINAL BAIL APPLICATION NO. 2251 OF 2025 Samir Shahjahan Shaikh ...Applicant.

Versus

The State of Maharashtra.

...Respondent.

Ms. Ashwini Achari a/w. Mr. Taraq Sayed, a/w. Mr. Anish Pereira, Advocate for Applicant.

Ms. Anamika Malhotra, APP for Respondent-State. API Ratnamala Rohit Chaudhari-Sawant, Hinjewadi Police Station. CORAM: ASHWIN D. BHOBE, J.

DATED: 25th AUGUST, 2025.

PC:- 1.

Heard Ms. Ashwini Achari, learned Advocate for the Applicant and Ms. Anamika Malhotra, learned APP for State.

By the present Application filed under section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short "BNSS"), the Applicant is seeking regular bail in Crime No. 15 of 2024 registered with Hinjewadi Police Station, for the offences punishable under Section 8(c), 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "NDPS Act"). Said Crime is registered as Special Case No. 443 of 2024 and is pending before the Special Court under NDPS Act, Pune.

There are two accused in the present crime. Applicant is Accused No.

2. Contraband i.e. 65 grams of Maphedrone (M.D.) came to be seized from the Applicant and Accused No. 1.

Applicant was arrested on 5th January, 2024. Bail Application at Exh. 19 filed by the Applicant in Special Case No. 443 of 2024 was rejected by the Special Court under NDPS Act, Pune vide order dated 12th February, 2025. 5.

Ms. Ashwini Achari, learned Advocate for the Applicant submits that there is non-compliance with the mandatory requirement of Section 50(1) of the NDPS Act. She relies on the complaint dated 6th January, 2024 and the seizure panchanama(जप्ती पंचनामा ) dated 06/01/2024 to submit that the search of the Applicant was by person/s who were not authorized, as such illegal and violative of the Applicant's right. For the said reasons, she submits that seizure stands vitiated warranting bail to the Applicant. 6.

Ms. Malhotra, learned APP for the State submits that the complaint dated 06/01/2024 and the seizure panchanama(जप्ती पंचनामा ) dated 06/01/2024 indicate that there is compliance with the provisions of Section 50 of the NDPS Act. At any rate, she submits that there is substantial compliance of Section 50 of the NDPS Act. She submits that the rigor of Section 37 would apply considering the quantity of the contraband seized. 7.

Perused the records with the assistance of the learned Advocates. 8.

In the case of Dilkush G. Sinai v/s. State of Goa1, this Court in paragraph 22 has held as follows :

11995 SCC OnLine Bom. 455.

"We have therefore no hesitation in upholding the submission of the learned counsel for appellant on this aspect of the case. We hold that the search effected by the panch witness was illegal. We hold that the said 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 relled on the observations made by the Division Bench of this Court in the case of Ramchandra Tolaram Khatri v. The State reported in AIR 1956 Bom. 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. It was held that the police took the panchas with themselves so that they could watch what happens. The panchas are not interested in what happens nor are they parties to the trap. It was held that the panchas were taken by the police along with themselves while conducting the search so that the search was conducted in presence of independent and respectable persons. It is obvious from this case also that it was very wrong on the part of the PW-3 to abdicate his function to conduct the search and instruct the panch witnesses to effect the search of the person of the accused. The P.W.

3 might have committed a bona fide error but the legal consequences of such error is fatal for the prosecution case. It shall be for the Inspector General of Police to issue a circular to all the police officers concerned informing them that the search should be conducted only by the officer duly authorised under the Act and not by an outsider, not even a panch or any other independent person." 9.

The said decision has been followed in the case of Mehboob Aziz Pathan v/s. The State of Maharashtra2, Sunday Eziko Ezagwu v/s. The State of Maharashtra3, Firoz Rauf Shaikh4 and Manish Kumar Boricha v/s. State of Maharashtra5.

10.

Entire controversy in the Bail Application centers around the search conducted of the Accused. The relevant portion of the complaint dated 06/01/2024 in respect of the issue of search/compliance of Section 50(1) of the NDPS Act is found on page 24 which is extracted herein : "त्यानातर वरिरष्ठ पंलीस निनारक्षक वभव शिंगार

याच

आदे न्वया

आम्ही देन्ही पंच व सबतच

पंलीस स्टाफच

उपंस्थिस्(तत इसमा नामा

इम्राना च+दे ख व समार हीजहीना , ख याच अंगाझडत घे तली अंसत , त्यातली इसमा नामा समार हीजहीना ख याच पंठाणी क3 त4च्या डव्या बज3च्या खिखश्यामाध्या एक पंरदे4क पंर;स्टाक निपंवत निफकटा पंढ-या रगाच पंदे(4 व लीहीना लीहीना प्ली;स्टाकच्या माकळ्या निपंव्या निमाळु3ना आल्या. त्याच कड सदेर पंदे(4बबत निवचरणी क ली अंसत, त्याना

सदेर-पंदे(4 ही मा फ डABना (एमा.ड.) ही अंमाली पंदे(4 अंसल्याच सनिगातली , तस च त्याच कड देना माबईली, र ल्व तितकEटा व रख रक्कमा निमाळु3ना आली. तस च इम्राना च+दे ख याच कड एक माबईली निमाळु3ना आली. सदेर निमाळु3ना आली ल्या मालीच वणी4ना खलीली प्रमाणी आही ."

(emphasis supplied) 11.

Relevant portion of the seizure panchanama (जप्ती पंचनामा ) dated 2Bail Application No. 3609 of 2024.

3Bail Application No. 3318 of 2023.

4Bail Application No. 5002 of 2024 5Bail Application No. 1163 of 2022.

06/01/2024 is extracted herein below :

"त्यानातर वरिरष्ठ पंलीस निनारक्षक वभव शिंगार

याच

आदे न्वया

आम्ही देन्ही पंच व सबतच

पंलीस स्टाफच

उपंस्थिस्(तत इसमा नामा

सदेर पंदे(4 ही मा फ डABना (एमा.ड.) ही अंमाली पंदे(4 अंसल्याच सनिगातली . तस च त्याच कड देना माबईली, र ल्व तितकEटा व रख रक्कमा निमाळु3ना आली. तस च इम्राना च+दे ख याच कड एक माबईली निमाळु3ना आली. सदेर निमाळु3ना आली ल्या मालीच वणी4ना खलीली प्रमाणी आही ."

(emphasis supplied) 12.

Having regard to the language of Section 42 of NDPS Act, only the officer mentioned therein are empowered to carry out the search. Ms. Malhotra, learned APP attempted to salvage the situation by submitting that there is no clarity as to who conducted the search. On the face of the ambiguity/vagueness in the persons who conducted the search, the benefit would be due to the Applicant. Contents of the complaint and the seizure panchanama give an impression of search being carried out by the panchas. Panchas are not authorized to carry out search. 13.

Considering the aforesaid material, having regard to the language of Section 50(1) of NDPS Act, prima facie, in my opinion, search carried out by any person not authorized would amount to transgression of the statutory provision as contemplated under the NDPS Act. Prima facie, I am satisfied that there are reasonable grounds for believing that the Applicant is not guilty of the offence.

14.

In view of the above, the Applicant is entitled to bail on the following conditions:

(a) Applicant be released on bail in Crime No. 15 of 2024 registered with Hinjewadi Police Station, upon furnishing P.R. Bond in the sum of Rs. 1,00,000/-(Rs. One Lakhs) with one or

two local sureties in the like amount to the satisfaction of the learned Special Court under NDPS Act, Pune.

(b) 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 such person from disclosing the facts to Court or any Police Officer. The Applicant shall not tamper with evidence.

(c) Applicant upon release within 3 days shall furnish his residential addresses with proof and contact details to the Investigating Officer, Hinjewadi Police Station. (d) Applicant shall attend each and every date of hearing in Special Case No. 443 of 2024 before the learned Special Court under NDPS Act, Pune, unless exempted.

(f) Observations made in the present order are restricted for considering the present Application for Bail. 15.

Bail Application No. 2251 of 2025 is allowed and disposed of on the above terms.

(ASHWIN D. BHOBE,J.)