Mumbai, Maharashtra – November 20, 2023 – The Special Judge for N.D.P.S. Cases at Greater Mumbai, Shri R. R. Bhagwat (C.R.44), has rejected the bail application of Usha Piyush Pawar (36), who was arrested in connection with C. R. No. 577/2023 registered at Malvani Police Station. Pawar is accused of offenses punishable under sections 8(c) read with 20(c) & 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.

Case Background:

According to the prosecution, on May 18, 2023, while on anti-narcotic patrolling duty, API Nilesh Salunkhe of Malvani Police Station received a secret tip that a woman would be transporting a large quantity of Ganja in an auto-rickshaw (No. MH 02 EQ 8079) to the Malvani area.

The police team intercepted the said auto-rickshaw in front of Jankalyan Nagar Bit No. 4 police chowki. Two panchas were called to the spot. Accused Usha Pawar was found sitting in the auto-rickshaw with a white-coloured bag. After complying with Section 42(2) of the NDPS Act and bringing raiding material, Pawar was served a notice under Section 50 of the NDPS Act.

API Salunkhe, under the direction of PI Bile (who was a Gazetted Officer present at the time), searched the bag and found 20 kgs. 210 gms. of Ganja. The Ganja was sealed as Exh.A. Subsequently, WPSI Rajashree Patale and WPC Wasave conducted a personal search of Pawar in a secluded place within the Bit Chowki, in the presence of a lady panch. During this search, Rs. 600/-, the Section 50 notice, and a Jio mobile phone were found. The Ganja and mobile were seized, and Pawar was arrested after the FIR was registered.

Arguments for Bail:

Ms. Zehra Charania, the learned advocate for Usha Piyush Pawar, argued that her client was falsely implicated and highlighted several alleged non-compliances with the NDPS Act. She contended that:

• There was non-compliance with Section 50 of the NDPS Act, arguing that the search was illegally conducted by an “un-empowered officer” in the presence of panchas, one of whom was a male panch.
• There was a violation of Section 42 of the NDPS Act.
• The “Ganja” found did not fall within the definition specified in Section 2(iii)(b) of the NDPS Act.
• As a lady, Pawar’s bail application could be considered under Section 437(2) of the Cr.P.C.

Ms. Charania relied upon observations of the Hon’ble High Court in Ganesh Prakash Golesar v/s. The State of Maharashtra (B.A. No. 2469/20231, decided on 07.10.2023) and paragraph 6 of Aabid Mushtak Ansari v/s. The State of Maharashtra (B.A. No. 1203/2023, decided on 07.09.2023) to support her claims regarding the illegality of the search and the definition of Ganja. She specifically argued that the search conducted in the presence of male and female panchas was illegal and that the appraisal of rights under Section 50 was wrongly done.

Prosecution’s Opposition:

Mr. Shankar Erande, the learned APP for the State, strongly opposed the bail application. He submitted that:

• The ACP and DCP were informed about the received information, indicating proper procedure.
• A significant quantity of 20 kgs. 210 gms. of Ganja was found in the bag, which constitutes a commercial quantity, thereby attracting the bar under Section 37 of the NDPS Act.
• The statement of the auto-rickshaw driver has been recorded, and an independent eye-witness is available.
• The co-accused, Piyush Pawar (the applicant’s husband), is yet to be arrested.
• Crucially, the recovery of the contraband was made from a bag kept in the auto-rickshaw, not from the personal search of the applicant. Therefore, Section 50 of the NDPS Act, which pertains to personal searches, is not attracted in this instance.

Court’s Reasoning and Decision:

Special Judge R. R. Bhagwat considered the rival submissions and the material on record. The court observed that the police team was indeed on patrolling duty and received information about the applicant carrying Ganja. The court found that Section 42(2) of the NDPS Act was properly followed.

Addressing the key points raised by the defense:

• The court noted that the bag was searched by API Nilesh Salunkhe in the presence of PI Bile, who was a Gazetted Officer. This implied proper authorization for the search of the bag.
• Regarding the personal search, the court found that the applicant was taken to a secluded place in the bit chowki where WPSI Rajashree Patale and WPC Wasave (both women officers) conducted her search in the presence of a female panch. The court concluded that the mandate of Section 50(4) of the NDPS Act was followed.
• Significantly, the court reiterated that since the contraband was not recovered from the personal search of the applicant but from the bag, the recovery was not affected by the provisions of Section 50. The court relied on the Hon’ble Supreme Court’s decision in Ranjan Kumar Chada v/s. Himachal Pradesh (Cri. Appeals no. 2239-2240/2011, decided on 06.10.2023), which cited State of Himachal Pradesh v/s. Pawan Kumar (2005) 4 SCC 350, holding that Section 50 of the NDPS Act is not applicable to recoveries made from a bag.
• The court also noted that the investigation is at an initial stage and the Chemical Analysis (C.A.) report will clarify the nature of the seized contraband.
• The court found that the citations relied upon by the applicant were not applicable to the factual aspects of the current case.

The court emphasized that the seized contraband (20 kgs. 210 gms. of Ganja) is a commercial quantity, which attracts the bar under Section 37 of the NDPS Act. The applicant failed to bring on record any material to overcome this statutory bar. Furthermore, the co-accused, Piyush Pawar (applicant’s husband), is yet to be arrested, and the source of the contraband has not been traced.

Considering the gravity of the offense, the prescribed punishment, the available material against the applicant, and the ongoing stage of investigation, the court concluded that the applicant was not entitled to bail.

Order:

The Bail Application No. 886/2023 was consequently rejected.

---