BA 854/2023
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MHCC020146202023
IN THE COURT OF THE SPECIAL JUDGE FOR N.D.P.S. CASES
AT GREATER MUMBAI
BAIL APPLICATION NO. 854 OF 2023
IN
C. R. No. 431/2023
Vijay Ramesh Indrekar
Age : 53 years
R/o : Kessar Bai Chawl,
Telli Galli cross lane,
Andheri (E), Mumbai
… Applicant/accused no.1
V/s.
State of Maharashtra
(Andheri Police Station
C.R. 431/2023)
… Respondent
Appearance :Ms. Zehra Charaniya, 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 :
02.11.2023
ORDER
This is an application filed by applicant – Vijay Ramesh
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
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A.P.P. and citations relied by Ld. Adv. for the applicant/accused.
2.

Heard learned Counsel Ms. Zehra Charaniya 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,
accused nos. 2 to 5 were directed to attend the police station during day
time. Thereafter, accused nos. 2 to 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
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
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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 the NDPS Act. There is no averment in the FIR that any
seizure panchanama was prepared on the date of the incident. 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 him on bail.
6.

Ld. Adv. Ms. Zehra Charaniya 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. Search of the accused
by officer, who is not empowered, renders it illegal. Accused no.3 to 7
have been bailed out. The applicant is entitled to bail on the ground of
parity. Accused no.1 has antecedent of prohibition case. Accused no.2
has antecedent of consumption of narcotic drugs. She further relied
upon citations and submissions in earlier bail orders in support of her
contentions. She prayed for bail.
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
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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
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. Accused no1 and 2 are habitual offenders. 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 containing 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. Similarly, homogeneous
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mixture of 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. 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. She relied upon other
citations on the point of the 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. The applicant has criminal antecedent, but there
is no record to show that the applicant is not convicted. The applicant is
resident of Mumbai. Presence of the applicant can be secured. As other
accused are released on bail, present applicant is entitled to bail on the
ground of parity. 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. 854/2023 is hereby allowed.
2. Applicant/accused Vijay Ramesh Indrekar 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 his 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 charge-
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sheet from the date of this order for investigation purpose of the present
crime.
(ii) The applicant/accused and his 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 his 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 : 02.11.2023
(R. R. BHAGWAT)
Special Judge (N.D.P.S.),
City Civil & Sessions Court,
Gr. Bombay (C.R. NO.44)
Dictated on
: 02.11.2023
Transcribed on : 03.11.2023
Signed on
: 03.11.2023
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE
03.11.2023
TIME
NAME OF STENOGRAPHER
12.20 p.m.

Mrs. S. W. Tuscano
Name of the Judge
HHJ Shri R. R. Bhagwat
(CR No.44)
Date of Pronouncement of
Judgment/Order.
Judgment/order signed by P.O on
02.11.2023
03.11.2023
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Judgment/order uploaded on
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03.11.2023