BA 792/2023
..1..
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. 792 OF 2023
IN
C. R. No. 431/2023
Ragini Sagar Indrekar
Age : 24 years
R/o : Kessar Bai Chawl,
Telli Galli cross lane,
Andheri (E), Mumbai
… Applicant/accused no.4
V/s.
State of Maharashtra
(Andheri Police Station
C.R. 431/2023)
… Respondent
Appearance :Mr. Tabish Mooman, 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 – Ragini Sagar
Indrekar 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
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.

BA 792/2023
2.

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Heard learned Counsel Mr. Tabish Mooman 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, 3 & 5 were directed to attend the
police station during day time. Thereafter, the applicant along with
accused no.2, 3 & 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
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
BA 792/2023
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months.
5.

The applicant is seeking bail on the grounds that applicant
is innocent and she has been falsely implicated in this case. There is no
recovery
at
the
hands
of
present
applicant.

Though
the
applicant/accused being a woman was searched in presence of a male
officer which is in contravention of NDPS Act, 1985.

The seized
contraband was not tested on the spot. The seized contraband was
heterogenous mixture and therefore, it cannot be said to be commercial
quantity of Ganja. Bar u/sec. 37 of NDPS Act does not attract. The
applicant is a student. Hence, prayed for releasing her on bail.
6.

Ld. Adv. Mr. Tabish Mooman for the applicant submitted that
contraband with the bag is weighed and it may be less than 20 kg. if
weight of the bag is deducted. Then, bar under section 37 of the NDPS
Act would not be attracted. The applicant is a student and copy of her
fees receipt is annexed with the bail application. Future of the applicant
would be affected. Illegal search is conducted. He also relied upon
submissions of learned adv. Dilip Mishra in Cri.B.A. No.805/2023 of
accused no.5 in the present crime. He prayed for granting bail to 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
BA 792/2023
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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)
BA 792/2023
Rules,2022.

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No such procedure is followed in the case in hand.

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 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 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. If submission of learned Adv. Tabish Mooman is considered, there
are chances of reduction in weight of contraband Ganja if weight of bag
is deducted and it may come down to constitute intermediate quantity.
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. The applicant is
resident of Mumbai. She does not have criminal antecedents. 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. For all these reasons, the applicant is entitled to bail. Hence, I
pass the following order.
ORDER
1. Bail Application No. 792/2023 is hereby allowed.
2. Applicant/accused Ragini Sagar Indrekar in C.R. No. 431/2023 of
Andheri Police Station registered under section 8(c) r/w 20(b) & 29 of
BA 792/2023
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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
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
TIME
NAME OF STENOGRAPHER
BA 792/2023
29.09.2023
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03.10 p.m.

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