BA 806/2023
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MHCC020138572023
Presented on
Registered on
Decided on
Duration
: 13.09.2023
: 13.09.2023
: 27.09.2023
: 14 days
IN THE COURT OF THE SPECIAL JUDGE FOR N.D.P.S. CASES
AT GREATER MUMBAI
BAIL APPLICATION NO. 806 OF 2023
IN
C. R. No. 431/2023
Gauri Suraj Navlekar
Age : 78 years
R/o : Kessar Bai Chawl,
Telli Galli cross lane,
Andheri (E), Mumbai
… Applicant/accused no.3
V/s.
State of Maharashtra
(Andheri Police Station
C.R. 431/2023)
… Respondent
Appearance :Mr. Dilip Mishra, 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 :
27.09.2023
ORDER
This is an application filed by applicant – Gauri Suraj
Navlekar for grant of bail under Section 439 of Code of Criminal
Procedure, 1860, who was arrested on 25.08.2023 in C.R. No.
431/2023 registered at Andheri Police Station for offence punishable
under sections 8(c) r/w 20(b) & 29 of
the Narcotic Drugs and
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Psychotropic Substances Act, 1985 (For short, “the NDPS Act”). Perused
bail application, say filed by the Investigating Officer through learned
A.P.P. and citations relied by Ld. Adv. for the applicant/accused.
2.

Heard learned Counsel Mr. Dilip Mishra for the applicant and
learned A.P.P. Mr. Shankar Erande for the respondent/State.
3.

It is the case of prosecution that on 24.08.2023 informant
PSI Ravindra Lakhan, PI Dahiphale, API Karanjkar, PSI Yadav, PH
Gavkar, PH Waingankar along with other staff attached to Andheri
Police Station were on patrolling duty for search of suspects involved in
transaction of Narcotic Drugs nearby police station. At about 00.10 hrs.
of 25.08.2023, when they reached to open ground in front of Kessar
Bai Chawl, Telli Galli cross lane, Andheri, they saw one person along
with four women in suspicious condition carrying white colour gunny
bag. During enquiry, they gave evasive answers regarding contents in
the said bag. Hence panchas were called and after completing necessary
procedure, search of the gunny bag (containing seven packets wrapped
with brown colour cello tape and loose quantity of ganja) was
conducted, which resulted in recovery of total 20 kgs. 400 gms. Ganja.
Said contraband came to be seized under panchanama and accused
no.1 came to be arrested at the same time. Since it was midnight time,
present applicant with accused no.2, 4 & 5 were directed to attend the
police station during day time. Thereafter, the applicant along with
accused no.2, 4 & 5 came to be arrested on 25.08.2023 and FIR came to
be registered against them.
4.

During interrogation with accused no.3 – Gauri Nevlekar
she revealed name of Shivlinga Dhangar as supplier of the said Ganja.
Hence accused Shivlinga came to be arrested on 28.08.2023. During
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interrogation with accused Shivlinga, he revealed name of Rajkumari
Thakur as the main supplier of said Ganja. Hence, accused Rajkumari
Thakur came to be arrested on 30.08.2023, who also gave statement
that she was supplying Ganja to accused Shivlinga since so many
months.
5.

The applicant is seeking bail on the grounds that applicant
is falsely implicated in this case. The alleged contraband recovered in
the present case is 20 kgs. 400 gms. Ganja. FIR does not reflect that
gunny bag containing contraband was in the possession of the accused.
Ganja in seven packets along with loose ganja is mixed together and
weighed. Search of the applicant as well as gunny bag was conducted
by raiding party members who were not empowered under the
provisions of NDPS Act.

There is no averment in the FIR that any
seizure panchanama was prepared on the date of the incident.

The
applicant is a lady. Hence, her bail can be considered u/sec. 437 of Cr.
P.C. The applicant is permanent resident of Mumbai. The applicant is
ready and willing to abide by the conditions laid down by this Court.
Hence, the applicant prayed for releasing her on bail.
6.

Ld. Adv. Mr. Dilip Mishra for the applicant submitted that
Seized Ganja in seven packets is mixed together. WPC has conducted
personal search of female accused and
two head constables have
conducted personal search of male accused. He relied upon
observations in the case of Parvez Haseen Khan v/s. State of
Maharashtra B.A. No.3486 of 2021 decided by Hon’ble Bombay High
Court on 19.07.2023 and
Sahil Jalauddin Ahmad v/s. State of
Maharashtra B.A. No.3740 of 2022 decided by Hon’ble Bombay High
Court on 26.07.2023 in which it is observed that drawing of
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representative samples by mixing contents of container/package is not
permissible as per Standing Order. He further submitted that search of
the accused by officer, who is not empowered, renders it illegal with the
help of observations in the cases of Manish Kumar Boricha v/s. State of
Maharashtra B.A. No.1163 of 2022 decided by Hon’ble Bombay High
Court on 02.01.2023 and Aarif Akram Shaikh v/s. State of Maharashtra
B.A. No.3158 of 2021 decided by Hon’ble Bombay High Court on
07.02.2023. He further submitted that search of female accused was
conducted in presence of male members and it violated their right of
decency. For this purpose, he relied observations in the cases of Gita
Ravindra Patel v/s. State of Maharashtra B.A. No.1375 of 2019 decided
by Hon’ble Bombay High Court on 30.10.2021 and Veneela Tilak v/s.
Shahasane,
Assistant
Collector
of
Customs
and
Ors.

MANU/MH/0829/1996. Weight of seized Ganja is shown as 20 kg. 400
grams in remand application and 20 kg 100 grams in FIR. The applicant
has criminal antecedents, but two cases are relating to consumption and
one case is relating to non-comercial quantity of narcotic drugs.
Remaining 19 cases are under prohibition law. He also relied upon a
few citations in which bail was granted to the accused persons who
were having criminal antecedents. He prayed for bail the applicant.
7.

Ld. APP Mr. Shankar Erande for the State submitted that
accused no.1 to 5 are found with gunny bag while the officers were on
patrolling duty. Panchas were called and mandate of sec. 50 of the
NDPS Act is followed. As seizure is made from the gunny bag and sec.
50 of the NDPS Act is not applicable, any defect with this regard does
not affect to the seizure. 20 kgs. and 400 gms. Ganja is seized and it is
commercial quantity.

Bar u/sec. 37 of the NDPS Act is attracted.

Wanted accused Akka is not arrested. Accused no.1 used to supply
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contraband to Gauri.

Disclosure statement of Rajkumari made on
03.09.2023 resulted into tracing out home of accused Shivlinga.
Accused Gauri and Shivlinga are connected with each other. Accused
Barkha, Ragini and Sarika are connected with each other. Offence is
serious. There are three NDPS cases and 19 prohibition cases pending
against accused Gauri and she is habitual offender. Chain is established.
He prayed for rejection of bail application.
8.

On perusal of the record and contents in FIR, it appears
that one male accused and four female accused were found at the spot
as referred above. They were carrying white colour gunny bag. It is not
mentioned in the FIR in whose possession the said gunny bag was
found. Subsequently, all five accused were apprised with their rights
u/sec.50 of the NDPS Act. Record shows that the police officers were
conscious of the fact that Narcotic drug or Psychotropic Substance
might have been kept in the gunny bag.

Therefore, they felt it
necessary to follow the procedure laid down under the provisions of
NDPS Act. In such circumstances, it was expected to follow the mandate
laid down u/sec. 42(1) of the NDPS Act. Record shows that HC Bhosale
and HC Bhoite had conducted the search of white colour gunny bag as
per directions of PI Dahiphade. Similarly, WPC Ambekar had seen the
contents in the gunny bag containng 7 packets wrapped with brown
colour cello tape. In short, search is conducted by HC and WPC who
are not empowered officers within meaning of sec. 42(1) of the NDPS
Act. It vitiates the procedure of search and seizure.
homogeneous
mixture of
Similarly,
seized contraband was prepared.

While
preparing such homogeneous mixture, it is necessary to satisfy
requirements as laid down in Rule 10 of
the Narcotic Drugs and
Psychotropic Substances (Seizure, Storage, Sampling and Disposal)
Rules,2022.

No such procedure is followed in the case in hand.

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Packages and container seized should have been identical in size and
weight bearing identical marking. Therefore, procedure of mixing the
contraband is not in consonance with Rule 10 of the Rules of 2022.
Advocate for the applicant has rightly relied on observations in the cases
of Parvez (supra) and Sahil (supra) on the point of mixing of samples
which is not permissible as per standing order 1/89. He also relied
upon other citations on the point of officer who are not empowered and
search of female accused conducted in presence of male members and
ratio in these citations is applicable to the case in hand. Considering all
these aspects, the accused have brought on record sufficient material to
make court to believe that they are not guilty of the offence. Bar u/sec.
37 of the NDPS Act is lifted. Though the applicant is having criminal
antecdents, most of the cases are relating to provisions under
Maharashtra Prohibition Act. There is no record to show that she is
convicted in either of offences. The applicant is resident of Mumbai.
Presence of the applicant can be secured. Stringent conditions can be
imposed while releasing the applicant on bail in order to serve purpose
of remaining investigation. For all these reasons, the applicant is
entitled to bail. Hence, I pass the following order.
ORDER
1. Bail Application No. 806/2023 is hereby allowed.
2. Applicant/accused Gauri Suraj Navlekar in C.R. No. 431/2023 of
Andheri Police Station registered under section 8(c) r/w 20(b) & 29 of
the Narcotic Drugs and Psychotropic Substance Act, 1985 shall be
released on her executing P. R. Bond of Rs. 50,000/- (Rs. Fifty Thousand
only) with one or more sureties in the like amount on following
conditions :(i) The applicant shall attend Andheri Police Station, Mumbai on
every Monday during 10.00 a.m. to 2.00 p.m. till filing of the chargesheet from the date of this order for investigation purpose of the present
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crime.
(ii) The applicant/accused and her sureties shall provide their
respective mobile numbers and correct addresses of their residences
alongwith names of two relatives with their mobile numbers and
addresses.
(iii) The applicant/accused shall produce the proof of her identity and
proof of residence at the time of executing the Bail Bonds.
(iv) The applicant/accused shall not tamper with prosecution
witnesses/evidence in any manner and co-operate in early disposal of
trial.
(v) The applicant/accused shall not commit similar offence while on
bail.
3. On request of Ld. Advocate for the applicant/accused, the
applicant/accused shall be released on provisional cash bail of
Rs.50,000/- for the next four weeks from the date of this order.
4. Application is disposed off, accordingly.

Date : 27.09.2023
(R. R. BHAGWAT)
Special Judge (N.D.P.S.),
City Civil & Sessions Court,
Gr. Bombay (C.R. NO.44)
Dictated on
: 27.09.2023
Transcribed on : 27.09.2023
Signed on
: 29.09.2023
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE
29.09.2023
Name of the Judge
TIME
NAME OF STENOGRAPHER
03.10 p.m.

Mrs. S. W. Tuscano
HHJ Shri R. R. Bhagwat
(CR No.44)
Date of Pronouncement of
27.09.2023
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Judgment/Order.
Judgment/order signed by P.O on
29.09.2023
Judgment/order uploaded on
29.09.2023