NDPS BA 1081.23
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MHCC020188042023
IN THE COURT OF THE SPECIAL JUDGE FOR N.D.P.S. CASES
AT GREATER MUMBAI
NDPS BAIL APPLN. NO. 1081 OF 2023
IN
C. R. No. 1061/2023
Saadullah Abdul Majid Idirisi
Age : 24 years, Occupation : Service
R/at : R. No. 212, Line No.135,
Kamlaraman Nagar,
Near Bihari Masjid,
Bainganwadi, Govandi,
Mumbai – 400 043.
V/s.
The State of Maharashtra
(Shivaji Nagar Police Station,
Mumbai)
… Applicant/accused
… Respondent
Appearance :Ms. Puja Yadav, Adv. for applicant.
Mr. Shankar Erande, APP for respondent/State.
CORAM : THE SPECIAL JUDGE
B. Y. PHAD (C.R.44)
DATE :
12.01.2024
ORDER
This is an application for grant of regular bail under section
439 of the code of criminal procedure in connection with Crime No.
1061 of 2023 registered with Shivaji Nagar police station under section
NDPS BA 1081.23
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8 (C) r/w 22 of the Narcotic Drugs and Psychotropic Substances Act
1985.
2.

In short according to the applicant he has been falsely
implicated in this case. The FIR does not disclose that the complainant
accompanied the raiding party. The entire search and seizure was made
by the complainant himself who is a constable hence mandatory
provision under section 42 is violated. It is alleged that at the instance
of the applicant 11 bottles of Chlorpheniramine Maleate and Codeine
Phosphate Cough Syrup containing 10 miligram or 0.01 grams of
Codeine each bottle is seized as such the entire recovery is less than 1
gm. of codeine and falls below commercial quantity. The small quantity
of codeine is 10 gms. and commercial quantity for the same is 1
kilogram. The multifold violation of sec. 42 of the NDPS Act vitiates the
recovery and the trial at this stage itself, and hence the applicant is
entitled to be released on bail. Only officers empowered under section
42 of the NDPS Act have power under section 42 to take search of the
contraband and the person. The recovery has been already completed
therefore there is no purpose to put the applicant behind the bars. The
applicant is permanent resident of Mumbai. There is no chance for him
to abscond. He is the sole bread winner of the family having age of 24
years. He has no criminal antecedents. He is ready to abide by the
conditions imposed by this court. Therefore, the applicant may be
released on bail
3.

This application has been objected by the prosecution by
filing reply exhibit 2. It is contended that the complainant Police
Constable No. 0404 93 of Shivaji Nagar police station, Govandi,
Mumbai was on duty on 1 December 2023 and while he was on
patrolling duty along with API Khillare and staff at about 19.15 near
BMC school on road no. 8, Bainganwadi, Govandi, Mumbai one suspect
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was found carrying black colour plastic bag containing suspicious
articles, therefore, he was apprehended by the police staff and
thereafter API Khillare asked that person for contents inside the black
colour plastic bag, thereupon he gave evasive answers. Therefore, it was
felt necessary to have his personal search. Accordingly, Asst. Police
Inspector, Khillare, contacted Police Inspector, and informed him about
the incident and called him to the place of incident. Thereafter, API
Khillare asked Police Constable No. 130118 to call twp Panch witnesses
and asked the police constable No. 111988 to bring laptop, printer and
other articles of trap. Thereafter, Police Inspector Pawar came to the
place of incident. The Panch witnesses and articles of trap were also
brought. The Panch no. 1 took search of all police officers staff and
Panch no. 2. No narcotic drug was found in the said search. API Khillare
took search of panch no. 1 and nothing objectionable or narcotic drug
was found in the said search. Thereafter, the accused was made aware
of provision under section 50 of the NDPS Act of being searched before
a Gazetted Officer or a Magistrate. Such letter was issued to him. The
accused declined to avail such right. As per direction of Police Inspector,
Pawar, Police Constable no. 040493 took search of black colour plastic
bag in presence of two panch witnesses, which resulted into recovery of
11 bottles of Coding Phosphate & Triprolidine Hydrochloride Syrup,
wings 100 ml. ONEREX COUGH SYRUP, having value of Rs. 1,870/and market value of Rs. 5,500.-. All the bottles were inspected by Police
Inspector Pawar. They were containing Coding Phosphate 10 mg. each.
Accordingly, the said bottles were packed and sealed by following
procedure and marked as exhibit ‘A’. Thereafter, as per directions of the
Police Inspector, personal search of the accused was taken by Police
Constable No. 040493 and in his right side pant pocket black colour IPhone of XR company and in the left side pant packet one currency
note of Rs.500/- was found. The same was seized by following
procedure and marked as exhibit ‘B’. Upon enquiry made to the accused
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about documentation of the said articles, he could not give satisfied
answers. He disclosed that he has no permit or license to carry or sale
the said bottles and he was going to sale it for intoxication. Accordingly,
the panchnama was prepared that accused was found illegally
possessing
11
bottles
of
Coding
Phosphate
&
Triprolidine
Hydrochloride Syrup, wings 100 ml. each of ONEREX COUGH SYRUP.
Therefore, the offence was registered against the applicant. The offence
is serious. About four accused have been arrested in the case. Detailed
investigation is it to be done. If the applicant is released on bail, he
may hamper investigation and may abscond. Therefore the application
may be rejected.
4.

Learned counsel, Ms. Puja Yadav for the applicant submits
that the applicant has not committed any crime and he has been falsely
implicated in this case. The applicant has a clear antecedent and
permanent place of abode.

The alleged quantity of contraband
substance in each portal is 10 mg. therefore, the total quantity of the
contraband in all bottles would not exceed 1 gm. Therefore, the
quantity seized is a small quantity.

The investigating agency has
committed breach of the fundamental provision under section 42 of the
NDPS Act. The personal search and search of the articles has been taken
by the police constable who is not authorised person as per the
Government Notification of the Government to take such search or do
the same under directions of the police Inspector. Therefore, the entire
procedure is vitiated and accused is entitled to get bail on that count. To
buttress the submissions, the learned counsel for the applicant has
relied on the ruling of Hon’ble Apex Court in Mohammad Salam Hanif
Shaikh Vs. The State of Gujrat, decided on 22.08.2022, wherein it has
been observed that while deciding the bail application in that case it
was not necessary to go into the question of quantity of the contraband
358 bottles of cough syrup codeine
and whether it is commercial
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quantity or whether it is a manufactured drug or a narcotic substance.
Further, learned counsel for the applicant has relied on the ruling of
Hon’ble Bombay High Court in Haji Mohd. Abdul Kadar Bhumedia Vs
The State of Maharashtra decided on 23.08.2023, wherein it has been
observed that admittedly, the API directed the police Nike to carry out
search, who carried out the personal search of the accused, which led
to the recovery of Mephedrone. Since the Police Nike is below the rank
of Head Constable in the State of Maharashtra, he is not an empowered
officer and though the searche carried out in presence of the API, it is
not a valid search. Therefore, there is clear breach of section 42 (1) of
the NDPS Act. Therefore, the applicant deserves his release on bail.
Further, learned counsel has referred to the ruling of Hon’ble Bombay
High Court in Shafat Mausin Khan Vs The State of Maharashtra,
decided on 18.10.2023, wherein bail has been granted to the accused
and it has been observed that, in the present case, section 50 of the
NDPS Act has application. The panchnama clearly reveals that the
personal search was carried out by the police Constable Mr. Jadhav, who
was not the empowered officer. The empowered officer was present to
instruct the police constable to carry out the search of the person of the
applicant. There is, thus, not proper compliance of the provisions
regarding search of the applicant as the search was not carried out by
the empowered officer. Prima-faice, it is the reasonable grounds for
believing that the applicant is not guilty of the offence. Furthermore,
there are no criminal
antecedents reported against the accused,
therefore, it is unlikely that he will commit any offence in future.
5.

The learned counsel submits that the above rulings are
squarely applicable to the facts of the present case in which the personal
search and search of the articles has been taken by the police constable,
who is not empowered officer under the Act. As per Government
Notification of Maharashtra State dated 14th November 1965, only the
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officers of above the rank of Head Constable in the State of Maharashtra
are empowered to take such search. Accused has no antecedents. He
has permanent residence. Therefore, the bail application may be
allowed.
6.

Per contra, learned APP Shri Shankar Erande for the
prosecution submits that the offence is serious.

The contraband
allegedly seized from the applicant is a commercial quantity, therefore
there is bar under section 37 of the NDPS Act for grant of bail to the
applicant. If the applicant is released on bail, he may repeat commission
of crime and tamper prosecution evidence and may abscond. Therefore,
the bail application may be rejected.
7.

Having considered the submissions from both the sides and
the rulings of Hon’ble Bombay High Court cited supra on behalf of the
applicant, in my opinion the said ruling are applicable to the facts of the
case. The Hon’ble Bombay High Court has granted bail to the accused
on the ground that the search was taken by Police Constable under
direction of his superior and a Police Constable is not empowered to
take search,
therefore, the proceeding is vitiated. Therefore, in my
opinion in the facts of the case at hand since the search has been taken
by a police constable it cannot be said that the applicant has committed
any offence under the NDPS Act or will commit like offence in future
under the provisions of the NDPS Act. The antecedents of the applicant
appears to be clear and the applicant is having permanent place of
abode, in my opinion it will be proper to be release the applicant on
bail by putting him on stringent conditions. Hence the following order.
ORDER
1. Bail Application No. 1081/2023 is hereby allowed.
2.The applicant/accused Saadullah Abdul Majid Idirisi
arrested
in
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Crime No. 1061/2023 shall be released on bail upon executing personal
bond of Rs. Sixty Thousand, along with a solvent surety bond of the
same amount, to ensure his appearance at all required times during the
legal proceedings, subject to the following conditions:
a.

The applicant/accused is directed to report to the Shivaji
Nagar Police Station every Sunday between 10.00 a.m. to 11.00 a.m.,
till filling of the final report without fail.
b.

The applicant/accused is prohibited from leaving the
jurisdiction
of
Mumbai
without
explicit
permission
from
the
investigating officer or the Court. The applicant/accused is also required
to surrender his passport if any to the investigating officer immediately.
If he has no passport, he shall file an affidavit to that effect with the
investigating officer to that effect within one month from today.
c.

The applicant/accused is strictly prohibited from making
any form of contact with co-accused, witnesses, or any individuals
directly associated with the case. The applicant/accused shall not
tamper with any evidence or documents related to the case.
d.

The applicant/accused must maintain a stable residence at
his current address in Govandi, Mumbai and is required to inform the
court and the investigating officer of any change in his residential
address. The applicant/accused shall furnish his active mobile numbers
to the Investigating Officer and shall also immediately report any
change in his mobile numbers.
e.

The applicant/accused must not interfere with the ongoing
investigation and shall comply fully with law enforcement in their
investigation.
f. The applicant/accused is prohibited from engaging in activities
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that might be related to the offense registered.
g. The applicant/accused must comply with all reasonable
directions made by law enforcement agencies or investigating officers
related to the case.
h. As per para No.12(1) of the Criminal Manual, the
applicant/accused before release on bail shall furnish the list of three
blood relatives with their detail residential addresses and also the
addresses of their place of work, if any, and shall also produce
documentary proofs showing the correctness of details produced by
them.
2.

Failure to adhere to any of these conditions will result in the
immediate revocation of bail and may lead to further legal
consequences.

Date : 12.01.2024
( B. Y. PHAD )
Special Judge (N.D.P.S.),
City Civil & Sessions Court,
Gr. Bombay (C.R. NO.44)
Dictated on
: 12.01.2024
Transcribed on : 16.01.2024
Signed on
: 16.01.2024
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE
17.01.2024
TIME
NAME OF STENOGRAPHER
10.45 a.m.

Mrs. S. W. Tuscano
Name of the Judge
HHJ Shri B. Y. Phad
(CR No.44)
Date of Pronouncement of
Judgment/Order.
Judgment/order signed by P.O on
12.01.2024
16.01.2024
NDPS BA 1081.23
Judgment/order uploaded on
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17.01.2024