BA 886/2023
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MHCC020151192023
IN THE COURT OF THE SPECIAL JUDGE FOR N.D.P.S. CASES
AT GREATER MUMBAI
BAIL APPLICATION NO. 886 OF 2023
IN
C. R. NO. 577/2023
Usha Piyush Pawar
Age : 36 years
R/o : Asha Nagar, Chinchoti,
Naigaon (East), Dist.- Palghar.
V/s.
State of Maharashtra
(Malvani Police Station)
… Applicant/accused
… Respondent
Appearance :Ms. Zehra Charania, Adv. for the applicant.
Mr. Shankar Erande, APP for the respondent/State.
CORAM :
H.H. THE SPECIAL JUDGE
SHRI R. R. BHAGWAT (C.R.44)
DATE :
20.11.2023
ORDER
This is an application filed by applicant – Usha Piyush
Pawar for grant of bail under Section 439 of Code of Criminal
Procedure, 1860 in C. R. No.577/2023 registered at Malvani Police
Station for offence punishable under sections 8(c) r/w sec.20(c) & 29
of the Narcotic Drugs and Psychotropic Substances Act, 1985 (For
short, “the NDPS Act”). Perused bail application and say filed by the
Investigating Officer through learned A.P.P.
2.

Heard learned Counsel Ms. Zehra Charania for the applicant
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and learned A.P.P. Mr. Shankar Erande for the respondent/State.
3.

It is the case of prosecution that on 18.05.2023, informant
Amar Shinde, PSI attached to Malvani Police Station joined his duty at
20.00 hours of 18.05.2023. He had gone to Bit No.4, Jankalyan Nagar
Police Chowki, Mumbai. Police squad of API Nilesh Salunkhe, HC Patil,
PC Rathod, PC Avhad, PC Shinde, PC Valatkar and WPC Wasave came to
the area of Bit no.4, Kharodi Cross, Marve Road at 20.52 hours while
discharging Anti-Narcotic patrolling duty. API Nilesh Salunkhe received
information from the secret informant that a lady was going to come in
the area of Malvani with large quantity of Ganja by Auto Rickshaw
No. MH 02 EQ 8079. Accordingly, vigilance was conducted. The said
Auto Rickshaw passed from a lane of Radha Krishna Hotel in the
direction of Jankalyan Nagar. The police team chased the Auto
Rickshaw. API Salunkhe made call on mobile of the informant to stop
the Auto Rickshaw. The informant and PC Pathan intercepted the Auto
Rickshaw in front of Jankalyan Nagar Bit no.4 police Chowki.
Meanwhile, police team also reached to the said spot. Two panchas
were called. Accused Usha Pawar was found sitting in the Auto
Rickshaw with a white colour bag. Correspondence was made for
compliance of sec.42(2) of the NDPS Act. Raiding material was brought
to the spot. Accused Usha Pawar was served with notice u/sec. 50 of the
NDPS Act. PI Bile directed API Salunkhe to take search of the bag.
Accordingly, API Salunkhe searched the bag and found 20 kgs. 210
gms. Ganja kept therein. Said Ganja was sealed and marked as Exh.A.
Subsequently, WPSI Rajashree Patale and WPC Wasave conducted
personal search of accused Usha Pawar in presence of lady panch by
taking her to secluded place in Bit Chowki. Cash of Rs.600/-, letter
u/sec. 50 of the NDPS Act and mobile of Jio Company were found
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during her personal search. Contraband Ganja and the mobile were
seized under panchanama. The accused came to be arrested after
registration of FIR.
4.

The applicant is seeking bail on the grounds that the
accused is falsely implicated. There is non-compliance of sec. 50 of the
NDPS Act. There is violation of sec.42 of the NDPS Act in letter and
spirit. Search is illegally conducted. Search of the applicant is conducted
by an un-empowered officer in presence of panchas out of whom, one
panch was male panch. This is contravention of provisions of the NDPS
Act. Ganja found with the applicant does not fall within ambit of
definition of Ganja as mentioned u/sec 2(iii)(b) of the NDPS Act. The
applicant is a lady and her bail application can be considered u/sec.
437(2) of the Cr.P.C. The applicant is resident of Mumbai. The applicant
is ready and willing to abide by all conditions of bail if this Court
releases her on bail.
5.

Ld. Adv. Ms. Zehra Charania for the applicant/accused
submitted that this is case of patrolling duty. API Salunkhe had received
the information and the applicant was arrested. Search of the applicant
was conducted. Ganja containing leaves, flowers, etc. was found in
gunny bag. WPC Wasve and PSI Rajashree Patale searched the applicant
in presence of panchas. Search conducted in presence of male and
female panchas is illegal. She relied upon observations of Hon’ble High
Court in the case of Ganesh Prakash Golesar v/s. The State of
Maharashtra in B. A. No. 2469/20231 decided on 07.10.2023. She also
relied upon para 6 in the case of Aabid Mushtak Ansari v/s. The State of
Maharashtra in B.A. No. 1203/2023 decided on 07.09.2023 to state that
seized contraband is not as per description of Ganja. Apprisal of rights
u/sec. 50 of the NDPS Act is wrongly done. She prayed for bail to the
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applicant.
6.

Ld. APP Mr. Shankar Erande for the State submitted that
ACP and DCP were informed about received information. 20 kgs. 210
gms. Ganja is found in the bag possessed by the applicant.

Seized
contraband is commercial quantity. Bar u/sec. 37 of the NDPS Act is
attracted. Statement of Rickshaw driver is recorded and independent
eye witness is available.

Wanted accused Piyush
Pawar is not yet
arrested. Recovery of the contraband is made from a bag kept in the
Auto Rockshaw. There is no recovery of contraband in personal search
of the applicant. Sec. 50 of the NDPS Act is not attracted. He prayed
for rejection of the bail application.
7.

Considering rival submissions and material on record, it
appears that the police team was discharging patrolling duty.

They
received the information that the applicant/accused was carrying Ganja
and she was travelling by the Auto Rickshaw. Record shows that sec.
42(2) of the NDPS Act is followed. The bag was searched by API Nilesh
Salunkhe in presence of PI Bile. Gazetted Officer was present at the
time of conducting search of the bag. Subsequently, the applicant was
taken to secluded place in bit chowki where woman PSI Rajeshree
Patale and WPC Wasave conducted her search in presence of female
panch. In short, mandate of sec. 50(4) of the NDPS Act is followed. As
contraband is not recovered in personal search of the applicant,
recovery of contraband from the bag is not affected. Even otherwise, the
applicant was served with notice u/sec. 50 of the NDPS Act before
conducting search of the bag as well as personal search of the applicant.
Hon’ble Supreme Court in the case of Ranjan Kumar Chada v/s.
Himachal Pradesh in Cri. Appeals no. 2239-2240/2011 decided on
06.10.2023 has relied upon decision in the case of State of Himachal
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Pradesh v/s. Pawan Kumar (2005) 4 SCC 350 and held that Sec. 50 of
the NDPS Act is not applicable to recovery of contraband made from
bag. Investigation is at initial stage. C.A. report may throw light on
nature of seized contraband. There is no scope to apply ratio in citations
relied by the applicant to the factual aspect of the case in hand. Seized
contraband is commercial quantity of Ganja. Bar u/sec. 37 of the NDPS
Act is attracted. The applicant could not bring on record material to
overcome bar u/sec. 37 of the NDPS Act. Further, co-accused Piyush
Pawar i.e. husband of present applicant is not yet arrested. Source of
contraband is not traced out. Considering gravity of the offence,
prescribed punishment, available material against the applicant and
stage of investigation, the applicant is not entitled for bail. Hence, I
pass following order :ORDER
1. Bail Application No. 886/2023 stands rejected.
2. Bail Application is disposed off, accordingly.

Date : 20.11.2023
(R. R. BHAGWAT)
Special Judge (N.D.P.S.),
City Civil & Sessions Court,
Gr. Bombay (C.R. NO.44)
Dictated on
: 20.11.2023
Transcribed on : 21.11.2023
Signed on
: 21.11.2023
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE
21.11.2023
Name of the Judge
TIME
NAME OF STENOGRAPHER
11.45 a.m.

Mrs. S. W. Tuscano
HHJ Shri R. R. Bhagwat
(CR No.44)
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Date of Pronouncement of
Judgment/Order.
Judgment/order signed by P.O on
20.11.2023
Judgment/order uploaded on
21.11.2023
21.11.2023