Greater Mumbai, September 29, 2023 – In a significant ruling, the Special Judge for NDPS Cases at Greater Mumbai, Shri R. R. Bhagwat (C.R.44), has granted bail to Ragini Sagar Indrekar, a 24-year-old resident of Andheri (E). The order, dated September 27, 2023, and officially signed and uploaded today, concludes Bail Application No. 792 of 2023, which arose from C.R. No. 431/2023 registered at Andheri Police Station.

Indrekar was arrested on August 25, 2023, along with four others, after police on patrol allegedly found them in a suspicious condition near Kessar Bai Chawl, Telli Galli cross lane, Andheri, carrying a white gunny bag. Upon inquiry, their evasive answers led to a search, in the presence of panchas, which resulted in the recovery of a substantial quantity of Ganja, totaling 20 kilograms and 400 grams, contained in seven packets wrapped with brown cello tape and some loose quantity. While one male accused was arrested at the scene, Indrekar and three other women were instructed to appear at the police station later that day, leading to their subsequent arrest and the registration of the FIR.

The prosecution’s case further unfolded with the interrogation of co-accused Gauri Nevlekar, who allegedly revealed Shivlinga Dhangar as the supplier of the Ganja. Dhangar’s arrest followed, and he, in turn, implicated Rajkumari Thakur as the main supplier, who confessed to supplying Ganja to Dhangar for several months.

Seeking bail, Indrekar, represented by Advocate Tabish Mooman, argued her innocence and false implication. A key contention was that no contraband was recovered directly from her. Furthermore, Advocate Mooman raised concerns about the legality of the search, stating that a female accused was searched in the presence of a male officer, allegedly contravening the NDPS Act. He also argued that the seized contraband was not tested on the spot and, being a heterogeneous mixture, could not definitively be classified as a commercial quantity of Ganja, thus making the stringent bar under Section 37 of the NDPS Act inapplicable. Advocate Mooman also highlighted that Indrekar is a student, submitting her fees receipt as evidence, and argued that her future would be jeopardized by prolonged incarceration. He further echoed arguments made in the bail application of another accused in the same crime, emphasizing the potential reduction in the total weight if the weight of the bag was excluded, possibly bringing the quantity down to an intermediate level.

Representing the State, learned APP Mr. Shankar Erande countered that all five accused were found together with the gunny bag during a police patrol. He asserted that the mandate of Section 50 of the NDPS Act was followed, and since the seizure was from the bag and not the personal search of any individual, any alleged procedural defect in the search of the female accused was irrelevant to the seizure itself. The APP maintained that the seized quantity of 20.4 kg of Ganja clearly constituted a commercial quantity, thus attracting the bar under Section 37 of the NDPS Act. He also mentioned the ongoing investigation to apprehend a wanted accused named Akka and highlighted the connections established between the accused through disclosure statements. The APP further pointed out the serious nature of the offense and the alleged habitual offender status of one of the co-accused, Gauri Nevlekar, who reportedly had multiple prior NDPS and prohibition cases against her, arguing that a chain of involvement had been established and thus, bail should be rejected.

However, Special Judge Bhagwat, upon reviewing the record and the FIR, raised significant concerns regarding the search and seizure procedure. The court noted that while five individuals were present with the gunny bag, the FIR did not specify who possessed it. More critically, the court pointed out that the search of the gunny bag was conducted by a Head Constable (HC Bhosale and HC Bhoite) and a Woman Police Constable (WPC Ambekar) under the directions of the Police Inspector (PI Dahiphade). The court emphasized that HCs and WPCs are not empowered officers under Section 42(1) of the NDPS Act, thus potentially vitiating the search and seizure procedure.

Furthermore, the court highlighted a crucial procedural lapse in the handling of the seized contraband. Referring to Rule 10 of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022, the court noted the absence of any indication that the mandatory procedure for preparing a homogeneous mixture of the seized contraband was followed. The rule stipulates that seized packages and containers should be identical in size and weight with identical markings, a requirement seemingly not met in this case. The court acknowledged the reliance placed by Advocate Mooman on precedents from the Hon’ble Bombay High Court in cases like Parvez Haseen Khan v/s. State of Maharashtra and Sahil Jalauddin Ahmad v/s. State of Maharashtra, which addressed the impermissibility of improper mixing of samples as per standing order 1/89 (a precursor to the 2022 Rules). The court also acknowledged the other citations provided by the defense concerning the lack of empowered officers during the search and the improper search of a female accused in the presence of male officers, finding the ratio of these citations applicable to the present case.

Considering the arguments regarding the weight of the bag potentially reducing the Ganja quantity to an intermediate level, coupled with the procedural irregularities in the search and handling of the contraband, the court concluded that the accused had presented sufficient material to suggest they might not be guilty of the offense. Consequently, the bar under Section 37 of the NDPS Act was deemed lifted. The court also took into account Indrekar’s residency in Mumbai and the absence of any prior criminal record, along with the possibility of securing her presence through stringent conditions.

For these reasons, Special Judge Bhagwat allowed the bail application, ordering the release of Ragini Sagar Indrekar upon executing a Personal Recognizance (P.R.) Bond of ₹50,000 (Rupees Fifty Thousand only) with one or more sureties of the like amount, subject to the following conditions:

• Indrekar must attend Andheri Police Station, Mumbai, every Monday between 10:00 a.m. and 2:00 p.m. until the filing of the charge-sheet for the purpose of the ongoing investigation.
• Indrekar and her sureties must provide their respective mobile numbers and correct residential addresses, along with the names, mobile numbers, and addresses of two relatives each.
• Indrekar must produce proof of her identity and residence at the time of executing the Bail Bonds.
• Indrekar shall not tamper with prosecution witnesses or evidence in any manner and must cooperate in the early disposal of the trial.
• Indrekar shall not commit any similar offense while on bail.

Furthermore, upon the request of Advocate Mooman, the court granted Indrekar a provisional cash bail of ₹50,000 for the next four weeks from the date of the order.

This order highlights the judiciary’s emphasis on adherence to the procedural safeguards enshrined in the NDPS Act and Rules, and the potential consequences of lapses in investigation and seizure protocols, even in cases involving significant quantities of narcotics. The grant of bail to Indrekar underscores the importance of establishing a clear link between the accused and the contraband, and the need for meticulous compliance with the statutory provisions governing search, seizure, and handling of narcotic substances.