BA.834/2023
-1-
RA.No.912/2023
MHCC020141922023
Presented on
Registered on
Decided on
Duration
: 20-09-2023
: 20-09-2023
: 09-10-2023
: 0 years, 0 months, 19 days
IN THE SPECIAL COURT FOR NARCOTIC DRUGS AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GREATER BOMBAY
BAIL APPLICATION NO.834 OF 2023
IN
NDPS REMAND APPLICATION NO.912 OF 2023
Aniket Arvind Chanchal
Occ.-Student, R/o. Room No.C-1001,
KGST Parisar, Sector 7, near Hirandini
Kharghar, Navi Mumbai-410210.

.. Applicant/Accused.

VERSUS
The State of Maharashtra
Assistant Police Inspector,
Anti Narcotics Cell, Kandivali Unit,
Crime Branch, Mumbai.

.. Respondent.

Advocate Mr. Mishra for the Applicant/Accused.
APP Mr. Wajeed Shaikh for the State/Respondent.
CORAM : H.H. THE SPECIAL JUDGE (NDPS)
SHRI. A.V. KHARKAR
(C.R.NO.42)
DATE : 09th October, 2023.
ORDER
1.

This is application for bail by applicant/accused Aniket Arvind
Chanchal who has been arrested by the officers of Anti Narcotic Cell
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(for short, ‘ANC’), Kandivali Unit in CR.No.60 of 2023 for the offence
punishable under Section 8(c) read with Sections 20, 22(c) and 29 of
the Narcotic Drugs and Psychotropic Substance Act, 1985, (for short,
‘NDPS Act’).
2.

The facts in brief are as follow:
The officers of ANC, Kandivali Unit were on patrolling duty on
5.7.2023.

At about 12.15 hours, they were passing area near
Khernagar, Bandra (East). They saw two persons standing beside the
road carrying plastic bag.

Their movements were suspicious.

officers of ANC stopped them.

The
They were identified as Aniket the
present applicant and one Ishan Dalvi.

The applicant Aniket was
alleged to be carrying 50 LSD dots weighing 0.81 grams. The accused
no.2 Ishan was found carrying 8 grams Hydro-ganja and they have
been prosecuted for violation of the NDPS Act.
3.

Heard the Counsel for the applicant/accused and APP for the
State. Perused the say.
4.

The Counsel for the accused has submitted that entire procedure
of search and seizure is vitiated, inter alia on the grounds that there
was no compliance with Sections 43 and 50 of the NDPS Act.

To
support his submission, he has taken the Court through the copy of FIR
and panchanama. He has stressed on the part that after the applicant
were stopped, the police personally had a suspicion that the accused
may be carrying narcotic substances, and hence, they summoned panch
witness. He has advanced arguments that once the policemen had a
suspicion that the accused may be carrying Ganja the procedure under
NDPS Act ought to have been followed. He has further taken the Court
through the panchanama. He has pointed out that when the accused
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were asked about the contents of the bag, the applicant stated that he
was carrying LSD dots. The counsel for the applicant has submitted
that once the accused stated that he was carrying LSD dots it amount to
an information and the Police Officers ought to have complied the
Section 42 of the NDPS Act.
5.

APP has countered this arguments by submitting that there is a
difference between “information and admission”.

The information
under Section 42 of the NDPS Act would be a prior and specific
information about any person carrying the narcotic substance or
committing an offence under NDPS Act. He has submitted that when
the Police Officer set out for patrolling they did not have any
information about the applicant. Only when the applicant was stopped
and questioned about the bag in his possession, the accused stated that
it contains narcotic substance. This would amount to an admission and
not information.
6.

I am in agreement with the submissions of APP for State. The
officers of ANC did not have any specific information about the
applicant.

The case is of chance recovery, during the course of
patrolling the statement of the accused that the bag carried by him
contains narcotic substance cannot be said to be an information as
contemplated under Section 42 of the NDPS Act. In such case it cannot
be said that it was necessary for the officers of ANC to ensure
compliance with Section 42 of the NDPS Act.
7.

The second aspect argued by the Counsel for the accused is about
the non compliance with Section 50 of the NDPS Act.
8.

The counsel for the accused has taken the Court through the FIR
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and panchanama which states that the applicant was stopped by the
officers and he was asked as to what he had concealed in the pocket of
the jeans pant. Thereupon the applicant took out a transparent plastic
bag.

When PI Naik asked him about the contents, the applicant
informed him that the bag contain LSD papers which were used as
narcotic.

The panchanama reads that thereafter, the applicant was
issued a notice under Section 50 of the NDPS Act. The Counsel for the
accused has submitted that personal search was carried out without
intimating the accused about the rights under Section 50 of the NDPS
Act, such search would be vitiated. On his part APP for the State has
submitted that there was no search at all. The accused voluntary took
out the bag containing the LSD dots and handed it over to the Police
Officer.

There was no search and that the recovery was not in
pursuance of a personal search by the police. He has taken the Court
through Section 50 of the NDPS Act. The opening words on Section
50(1) reads as follow:
‘When any officer duly authorized under Section 42 is about
to search any person under the provisions of section 41,
section 42 or section 43, he shall if such person so requires,
take such person without unnecessary delay to the nearest
Gazetted Officer of any of the departments mentioned in
section 42 or to the nearest Magistrate.”
9.

He has submitted that the notice under Section 50 of the NDPS
Act is necessary only when the officer empowered under Section 42
intends to take search and is about to take search. In this case there
was no search and hence, notice under Section 50 of the NDPS Act
would not be necessary. Countering this arguments, the counsel for the
accused has submitted that Section 50 of the NDPS Act is a mandatory
safe guard and it was absolute responsibility of the seizing officers to
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intimate the applicant about his rights. Merely, because the accused
has voluntarily handed over the contraband and without there being
any search it would not absolve the police from complying the Section
50 of the NDPS Act.

In my opinion the submissions made by the
Counsel for the applicant would not sustain in view of the provision of
Section 50 of the NDPS Act. The applicant was not subjected to a
personal search. On going through the panchanama and the FIR what
can be gathered is that the applicant voluntarily took out the bag
containing the contraband from his pocket and handed it over to the
officer. In such case there was no need to issue notice under Section 50
of the NDPS Act. The seizure cannot be vitiated on this grounds.
10.

The applicant is alleged to be carrying commercial quantity of
contraband. Hence, Section 37 of the NDPS Act would apply. There
are no reasons to believe that the accused is not guilty of the offence or
that he would not commit the offence, if released on bail. In view of
the interdict of Section 37 of the NDPS Act, the absence of antecedents,
age and the educational qualifications of the applicant cannot be
considered while deciding the application for bail.

Hence, the
application for bail stands rejected and the following order is passed:
Order
Bail Application No.834 of 2023 in NDPS Remand Application
No.912 of 2023 stands rejected and disposed off.
AMIT V
KHARKAR
Date : 09.10.2023
Dictated on
: 09.10.2023
Transcribed on : 17.10.2023
HHJ signed on : 17.10.2023
Digitally signed
by AMIT V
KHARKAR
Date: 2023.10.17
18:00:08 +0530
(A. V. KHARKAR)
NDPS Special Judge,
City Civil & Sessions Court,
Gr. Bombay.

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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
17.10.2023/ 5.57 p.m.
UPLOAD DATE AND TIME
(Mrs. Pradnya S. Naik)
NAME OF STENOGRAPHER
Name of the Judge (With Court room no.)

SHRI A.V.Kharkar
(C.R. No.42)
Date of Pronouncement of JUDGMENT/ 09.10.2023
ORDER
JUDGMENT/ORDER signed by P.O. on
17.10.2023
JUDGMENT/ORDER uploaded on
17.10.2023