Mumbai – A Special Court for Narcotic Drugs and Psychotropic Substances (NDPS) in Mumbai, on November 3, 2023, granted bail to Shadma Riyajuddin Ansari, who was accused of possessing a commercial quantity of Alprazolam tablets. The court’s decision hinged on a crucial procedural lapse: the initial search that led to the recovery was conducted by a police constable not authorized under the NDPS Act.

Ansari was arrested in connection with C.R. No. 592 of 2023 registered with Shivaji Nagar Police Station, facing charges under Section 8(c) read with Section 22 of the NDPS Act. The core allegation against her was the possession of a commercial quantity of Alprazolam Tablets.

Procedural Flaw Leads to Bail

The primary ground for Ansari’s bail application, argued by her counsel Ms. Puja Yadav, was that the search was conducted by a Women Police Constable (WPC) Vhanmane, who was not empowered to carry out such searches under Section 42 of the NDPS Act. According to a Home Department notification dated November 14, 1985, only officers above the rank of Head Constable in Maharashtra are authorized for the purpose of Section 42(1) of the NDPS Act, which governs searches based on prior information.

Ms. Yadav supported her argument by citing previous Bombay High Court orders in cases such as Rakesh Hiloria @ Dhobi v. State of Maharashtra and Shafat Mausin Khan @ Shahrukh Khan v. State of Maharashtra, contending that an unauthorized search would vitiate the entire recovery, thereby entitling the accused to bail. It was undisputed that Ansari was stopped during patrolling, leading to a “chance recovery,” and that the search was indeed carried out by a women police constable.

Prosecution’s Counter-Argument and Court’s Verdict

The Assistant Public Prosecutor (APP), Ms. Geeta Nayyar, countered that the cited High Court precedents were not applicable to the current facts. She argued that the personal search of a female must be carried out by a female officer as per Section 50 of the NDPS Act, implying that this was not a Section 42 search requiring a specific rank for the searching officer. The APP also referred to an Allahabad High Court ruling in Pramila v. State of UP, which suggested that a search by an unempowered lady officer under the directions of an empowered officer could be treated as valid.

However, Special Judge A.V. Kharkar, after considering the arguments and perusing the records, placed significant reliance on the Bombay High Court’s ruling in Shafat Mausin Khan (Bail Application No. 872 of 2023). He noted that the Shafat Mausin Khan case involved similar circumstances from the same police station, differing only in the suspect’s gender. The Bombay High Court in Shafat Mausin Khan had, in turn, relied on the Supreme Court’s pronouncement in State of Rajasthan v. Parmanand.

Quoting from the Shafat Mausin Khan order, the Special Judge reiterated the principle that a personal search carried out by a police constable who is not an empowered officer, even if instructed by a superior, does not constitute proper compliance with the search provisions. The relevant part of the order stated, “Prima facie, there are reasonable grounds for believing that the applicant is not guilty of the offence.”

Bail Granted with Conditions

Based on this established legal precedent, Judge Kharkar concluded that “the search conducted by an unempowered officer under the orders of empowered officer cannot be held to be a search by the empowered officer and that the applicant will have to be released on bail.”

Shadma Riyajuddin Ansari was granted bail upon furnishing a solvent surety and a Personal Recognizance (P.R.) bond of ₹70,000/-.

The court imposed several conditions on her release, including:

• Providing her residential address, mobile number, and email address.
• Not tampering with evidence or threatening prosecution witnesses.
• Marking her presence at Shivaji Nagar Police Station every Tuesday and Friday between 11:00 a.m. and 4:00 p.m. until further order.
• Furnishing residential proof and depositing her passport (if any) with the Investigating Officer, with intimation to the court.
• Not committing any offense of a similar nature while on bail.

The bail application was accordingly disposed of, highlighting the critical importance of strict adherence to procedural safeguards during searches under the NDPS Act.