Mumbai Court Grants Bail to Lionel Raphael Silviera Accused in NDPS Case, Citing Non-Compliance with Mandatory Provisions

Mumbai, December 3, 2018 – Lionel Raphael Silviera, 32, accused in a case involving the seizure of alleged narcotic substances, has been granted regular bail by the Special Judge for NDPS Cases in Greater Mumbai. His Honour Judge V.V. Vidwans (Court Room No. 42) allowed Silviera’s bail application, primarily citing prima facie non-compliance with the mandatory provisions of Section 50 of the NDPS Act by the Narcotics Control Bureau (NCB) officers during the search and seizure operation.

Silviera, a resident of Mogra Village, Andheri (E), Mumbai, was arrested on November 3, 2018, along with co-accused Manjeet Sharma, for allegedly committing offenses punishable under Sections 8 read with 20, 22, 28, and 29 of the NDPS Act. These sections pertain to the prohibition of certain activities involving narcotic drugs and psychotropic substances, punishment for contravention in relation to cannabis plant and cannabis, psychotropic substances, attempts to commit offenses, and criminal conspiracy, respectively.

Prosecution’s Case and Seizure Details

According to the NCB, represented by Ld. SPP Mrs. Leena Shinde, their officers seized 480 grams of dark-green resinous substance purportedly Charas, 21 purportedly LSD Blots (approx. 0.5 grams), and 0.3 grams of white crystals purportedly MDMA. Both Silviera and Sharma were summoned under Section 67 of the NDPS Act, their statements recorded, and subsequently arrested.

The NCB contended that while the quantities of Charas and MDMA might not individually cross the commercial quantity threshold, the 21 LSD Blots (approx. 0.5 grams) fall into the category of commercial quantity, thereby attracting the stringent provisions of Section 37 of the NDPS Act, which makes bail difficult unless the court is satisfied that there are reasonable grounds for believing the accused is not guilty.

Applicant’s Defense and Personal Circumstances

Mr. Ravi Gurnani, the learned advocate for Silviera, argued that his client was falsely implicated and not guilty of the alleged offense. He emphasized that there was no compliance with the mandatory provisions of the NDPS Act during the operation. Gurnani highlighted that the case primarily relied on information received by NCB officers, the seizure panchanama, and statements recorded under Section 67 of the NDPS Act. He further asserted that custodial interrogation was no longer necessary.

Mr. Gurnani pointed out that the quantity of Charas and MDMA recovered was non-commercial, and thus the rigors of Section 37 of the NDPS Act were not applicable. He stressed that Silviera is a young Indian citizen with clean antecedents, a permanent resident at the given address, and has deep roots in society. He also brought to the court’s attention that Silviera had recently had a registered marriage with Sasha and that their wedding ceremony was scheduled for December 9, 2018, in Goa, submitting a wedding invitation as proof.

Court’s Analysis and Decision

Judge Vidwans meticulously examined the arguments from both sides, as well as several authoritative judgments. The court acknowledged the NCB’s claim regarding the commercial quantity of LSD Blots. However, the judge’s focus turned to the procedural aspects of the seizure.

The court specifically noted that while the seizure was effected by a team of NCB officials, “no Gazetted officer of the rank of Superintendent of NCB or above or authorized officer was present.” This absence, the court stated, constituted a “prima facie non-compliance of the mandatory provisions of Sec.50 of the NDPS Act.” The court further observed that no field test was conducted at the scene.

Referring to the Supreme Court’s ruling in Arif Khan @ Agha Khan V/s. State of Uttarakhand, the judge reiterated that non-compliance with mandatory provisions of Section 50 of the NDPS Act is fatal to the prosecution, even at the stage of deciding a bail application. This precedent, which resulted in an acquittal in a similar case due to an unempowered officer conducting the search and seizure, was deemed directly applicable to the facts of the present case.

Conversely, the court found the authorities cited by the NCB, generally concerning the stringent nature of Section 37 and the directory nature of NCB’s internal guidelines, to be distinguishable on facts or of a more general nature, not directly outweighing the fundamental issue of Section 50 non-compliance.

Considering that the quantity of Charas and MDMA seized was non-commercial, and a prima facie non-compliance of Section 50 was evident, the court concluded that the stringent provisions of Section 37 were not attracted. The judge also considered Silviera’s status as an educated and qualified person (holding a business administration degree from Australia) and a permanent resident, indicating he was not likely to abscond. The personal circumstance of his upcoming wedding ceremony, though not the primary legal ground, also likely factored into the “human attitude” urged by the Supreme Court in Dataram Singh v/s. State of Uttar Pradesh & Anr.

Therefore, the court held that Silviera had made out a case for bail.

Bail Conditions

The court allowed Bail Application No. 814 of 2018, ordering Lionel Raphael Silviera’s release on bail, subject to the following conditions:

P.R. Bond and Sureties: He must execute a Personal Recognizance (P.R.) Bond of Rs. 75,000/- (Rupees Seventy-Five Thousand Only) with one or two local sureties of the like amount.
Reporting to IO: He is to attend the Investigating Officer at the NCB Zonal Unit office for investigation purposes: his first attendance on December 17, 2018, and thereafter once a fortnight every second and fourth Monday between 11 AM to 2 PM, until the charge-sheet is filed. If the I.O. is absent, he must report to the PSO Incharge.
No Tampering: He shall not tamper with prosecution witnesses or evidence in any manner and must cooperate with the investigation.
Contact Information: He must furnish his cell/landline number and those of two nearest relatives or friends residing in Mumbai.
Proof of Identity/Residence: He must produce proof of his identity and residence in Mumbai at the time of executing the bail bond.
No Similar Offence: He shall not commit any similar offense while on bail.

The court explicitly stated that any breach of these conditions would entail the cancellation of bail. The bail application stands disposed of accordingly. This ruling underscores the judiciary’s strict adherence to procedural mandates under the NDPS Act, emphasizing that even in serious cases, a failure to follow the prescribed legal process can significantly impact the prosecution’s ability to deny bail.