Mumbai, September 17, 2018 – The Special Court for Greater Bombay under the NDPS Act today rejected the bail application of Idris Daaud Hathiyari, 44, who was arrested with 560 grams of “gard powder” (heroin). Additional Sessions Judge S.V. Yarlagadda, presiding over Bail Application No. 598 of 2018, found that the seized quantity constituted a commercial quantity, thereby attracting the stringent provisions of Section 37(1)(b) of the NDPS Act.

Hathiyari was arrested in Crime No. 88/2018 of L.T. Marg Police Station for an offense under section 8(c) punishable under section 21 of the NDPS Act. He is currently in judicial custody.

Prosecution and Defense Arguments

Mr. S.R. Patil, advocate for the applicant, argued that his client had been falsely implicated and that Section 42 of the NDPS Act, which pertains to the recording of information, had not been properly complied with by the police. He contended that since the applicant was already in judicial custody, further interrogation was not required, and a prolonged pre-trial detention was unlawful, especially given that the chargesheet and trial could take a considerable amount of time. Mr. Patil also highlighted that Hathiyari has a fixed place of residence in Madhya Pradesh and was willing to abide by any conditions imposed by the court.

In support of his argument regarding Section 42 compliance, Mr. Patil cited the Hon’ble High Court’s decision in Rajaram Kadu V/s. The State of Maharashtra (Cri. Bail Appln. No. 2108/2016, decided on June 13, 2017). He argued that the FIR did not mention that the tip-off about the applicant was reduced to writing, and that such information should be recorded in a separate information register, not just a station diary, and by the officer who received it.

Conversely, Mr. P.S. Tawade, the Additional Public Prosecutor for the State, opposed the bail, reiterating concerns that the applicant was likely to abscond, might obstruct the investigation, and the source of the contraband was yet to be traced. He stressed that under Section 37(1)(b) of the NDPS Act, bail cannot be granted unless the court is satisfied that there are reasonable grounds to believe the accused is not involved in the offense of commercial quantity and is unlikely to repeat the offense.

Court’s Findings on Section 42 Compliance

Judge Yarlagadda directed the investigating officer to produce the investigation papers for review. Upon examining the station diary entry, the court noted that Police Inspector Sanjay Mohite had recorded information received from Police Constable Gujar’s special informer, detailing the applicant’s plan to travel from Madhya Pradesh to Mumbai to sell heroin. The entry also included the time, location, and description of the applicant, and indicated that a copy of this information was submitted to the Assistant Commissioner of Police (ACP) and Deputy Commissioner of Police (DCP).

The judge rejected the defense’s argument that such information must be recorded in a separate register, affirming that maintaining a station diary by the police in the regular course of official business constitutes sufficient compliance. The court distinguished the Rajaram Kadu case, noting that in the present case, the information was recorded by a superior officer and forwarded to higher authorities. The court also found an indirect reference to the station diary in the FIR, further discrediting the claim of total non-compliance.

Citing Karnal Singh V/s. State of Haryana (2009 Cri. L.J. 4299) and Basheer @ M.B. Basheer V/s. State of Kerala (2004 (5) SCC 659), the court emphasized that non-compliance with Section 42 is not the sole ground for bail, especially when Section 37(1)(b) of the NDPS Act is attracted. The court concluded that this was not a case of total non-compliance of Section 42, and therefore, the information reduced into writing by a superior officer could not be disbelieved at the bail stage.

Conclusion

Despite the applicant’s counsel raising various grounds, the court was not convinced that there were reasonable grounds to believe Hathiyari was not involved in an offense pertaining to a commercial quantity of heroin. The prosecution did not provide details of any previous offenses registered against the applicant, but this factor alone was not sufficient to grant bail given the nature and quantity of the seized contraband.

The court reiterated that under Section 37(1)(b) of the NDPS Act, the accused must satisfy the court that there are reasonable grounds to believe they are not guilty of the offense and are unlikely to commit any offense while on bail. The applicant failed to meet this high threshold.

The application for bail was therefore rejected.