BA.No.884/2023
-1-
NDPS.RA.916-2023
MHCC020151022023
Presented on
Registered on
Decided on
Duration
: 07-10-2023
: 07-10-2023
: 03-11-2023
: 0 years, 0 months, 27 days
IN THE SPECIAL COURT FOR NARCOTIC DRUGS AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GREATER BOMBAY
BAIL APPLICATION NO.884 OF 2023
IN
NDPS REMAND APPLICATION NO.916 OF 2023
Shadma Riyajuddin Ansari
.. Applicant/Accused.

VERSUS
The State of Maharashtra
(at the instance of Shivaji Nagar Police
Station, vide CR.No.592 of 2023.)

.. Respondent.

Advocate Ms. Puja Yadav for the Applicant/Accused.
APP Ms. Geeta Nayyar for the State/Respondent.
CORAM : H.H. THE SPECIAL JUDGE (NDPS)
SHRI. A.V. KHARKAR
(C.R.NO.42)
DATE : 3rd November, 2023.
ORDER
1.

This is an application for a bail by applicant/accused Shadma
Riyazuddin Ansari who has been arrested in CR.No.Special LAC 592 of
2023 registered with Shivaji Nagar Police Station for offence
punishable under Section 8(c) and read with Section 22 of the NDPS
BA.No.884/2023
Act.

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NDPS.RA.916-2023
The allegation against her is that she was found possessing
commercial quantity of Alprazolam Tablets.
2.

Heard the Counsel for the applicant and APP for the State.

Perused say.
3.

The principle ground on which the bail is sought is that the
searched was conducted by Women Police Constable Vhanmane who is
not authorized under the NDPS Act. The counsel for the accused has
relied on the order of the Bombay High Court in the case of Rakesh
Hiloria @ Dhobi Vs. State of Maharashtra in Criminal Bail Application
No.362 of 2019 and in the case of Shafat Mausin Khan @ Shahrukh
Khan Vs. State of Maharashtra in Bail Application No.872 of 2023 and
submitted that the searched would be vitiated and the accused would
be entitled for bail. The counsel for the accused has also relied on the
notification of the Home department dated 14.11.1985 which sets out
the officers who are empowered under Section 42 of the NDPS Act. A
perusal of the said order would show that all the officers above the
rank of Head Constable in the State of Maharashtra have been
empowered for the purpose of Section 42(1) of the NDPS Act.
4.

In this case it is not disputed that the accused was stopped
during the course of patrolling and that the recovery was a chance
recovery. It is also not disputed that the search was carried out by a
women police constable.
5.

APP has submitted that the ratio in the above cases would not be
applicable to the present set of facts. The personal search of a female
must be carried out by any female and hence, the search in this case
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NDPS.RA.916-2023
was under Section 50 of the NDPS Act and not under Section 42.
Hence, the search would not be a search by a non empowered officer.
6.

I have gone through the arguments cited. In this case, the bag of
the applicant was searched by a women police constable. Commercial
quantity of contraband i.e. Alprazolam Tablets were recovered and
thereafter, she was again subjected to a personal search.
7.

APP has relied on the ratio in the case of Pramila Vs. State of UP
in Appeal No.4362 of 2014 decided by Allahabad High Court and
submitted that were a unempowered lady officer had conducted a
search of a lady under the directions of unempowered officer it will
have to be treated that the search was by an empowered officer.
8.

In the case of Shafat Mausin Khan (supra) the Bombay High
Court had dealt with a similar circumstance and in the case registered
by same police station. The only difference is that the suspect was a
male in that case. The Hon’ble Bombay High Court relied on the ratio
in the case of State of Rajasthan Vs. Parmanand and anr. held that:
“In the present case, Section 50 of the NDPS Act will
have application. The panchanama clearly reveals that
the personal search was carried out by the Police
Constable Mr. Jadhav who was not the empowered
officer. The empowered officer was present who
instructed the Police Constable to carry out the search
of the person of the applicant. There is, thus, no
proper compliance of the provisions regarding search
of the applicant as the search was not carried out by
the empowered officer.
Prima facie, there are
reasonable grounds for believing that the applicant is
not guilty of the offence.”
BA.No.884/2023
9.

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NDPS.RA.916-2023
Considering the ratio in the case of Shafat Mausin Khan (supra)
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. Hence,
the following order is passed:
Order
1.

Bail Application No.884 of 2023 is hereby allowed.

2.

Applicant/Accused Shadma Riyajuddin Ansari being accused in
Special LAC/CR.No.592 of 2023, registered with Shivaji Nagar Police
Station, for the offence punishable under Section 8(c) read with
Section 22 of the Narcotic Drugs and Psychotropic Substances Act,
1985, be released on furnishing solvent surety and P.R. bond of
Rs.70,000/- (Rupees Seventy Thousand Only).
3.

The applicant/accused and her surety shall provide their
respective residential addresses, mobile numbers and email addresses,
if any.
4.

The applicant/accused shall not tamper with evidence or offer
inducement or threaten prosecution witnesses.
5.

To ensure that the applicant/accused does not flee, she is
required to mark her presence with Shivaji Nagar Police Station, on
every Tuesday and Friday between 11.00 a.m. and 4.00 p.m., until
further order.
6.

Prior to her release, the applicant/accused shall furnish her
residential proof and deposit Passport, if any, with Investigating Officer
under intimation to this Court.
7.

The applicant/accused shall not commit offence of similar
nature.

BA.No.884/2023
8.

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NDPS.RA.916-2023
Bail Application No.884 of 2023 in NDPS Remand Application
No.916 of 2023 is disposed off.

Date : 03.11.2023
Dictated on
: 03.11.2023
Transcribed on : 07.11.2023
HHJ signed on : 07.11.2023
(A. V. KHARKAR)
NDPS Special Judge,
City Civil & Sessions Court,
Gr. Bombay.

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NDPS.RA.916-2023
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
7.11.2023/3.52 p.m.

(Mrs. Pradnya S. Naik)
UPLOAD DATE AND TIME
NAME OF STENOGRAPHER
Name of the Judge (With Court room no.)

SHRI A.V.Kharkar
(C.R. No.42)
Date of Pronouncement of JUDGMENT/ 03.11.2023
ORDER
JUDGMENT/ORDER signed by P.O. on
7.11.2023
JUDGMENT/ORDER uploaded on
7.11.2023