Criminal Application No. 362 in 82 of 2011, in N.D.P.S. Special Case No. 29 in NDPS Special R.A. No. 132 in NDPS Special C.R. No. 01 of 2011. Case: Fakir Ahmed Mohd. Shaikh Vs State of Maharashtra. High Court of Bombay (India)
| Case Number | Criminal Application No. 362 in 82 of 2011, in N.D.P.S. Special Case No. 29 in NDPS Special R.A. No. 132 in NDPS Special C.R. No. 01 of 2011 |
| Counsel | For Appellant: U. V. Arolkar, Adv. and For Respondents: P. A. Pol, P. P. along with J. P. Yagnik, APP. |
| Judges | J. H. Bhatia, J. |
| Issue | Narcotic Drugs and Psychotropic Substances Act (61 of 1985) - Sections 50, 37, 2(3)(a) |
| Citation | 2011 CriLJ 4896 |
| Judgement Date | August 12, 2011 |
| Court | High Court of Bombay (India) |
Order:
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Heard the learned counsel. Perused the papers.
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This is the second application for bail filed by the applicant, who was allegedly found in possession of 1.100 kg. of Charas. In the previous application, he had contended that as the charge-sheet was not filed within 60 days, accused was entitled to be released on bail under Section 167(2) of the Cr. P.C. It was also contended that data of the analysis was not provided by C.A., therefore, merely because C.A. Report disclosed that contents were charas, it could not be held that accused was in possession of 1.100 kg. charas, which is commercial quantity. Both these objections were rejected holding that merely because data was not given, it could not be presumed that quantity of the Charas seized from accused was not 1.100 kg. and the quantity, being commercial quantity, charge-sheet could be filed within 180 days.
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The second application is filed on three grounds. Firstly, even though the charge-sheet was filed after 142 days from the date of arrest, investigation was incomplete because data of the analysis was not supplied with C.A. Report and, therefore, C.A. Report was incomplete. It is contended that data was provided and investigation was infact completed long after 180 days. Merely because data of the analysis was not provided along with C.A. Report, it cannot be said that investigation was not complete and, therefore, it cannot be said that charge-sheet was not duly filed within 180 days from the date of arrest. In view of this, request for bail under Section 167(2) of the Cr. P.C. is liable to be rejected.
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The learned counsel for the applicant further contends that provisions of Section 50 of the N.D.P.S. Act, which are mandatory were not complied. Panchanama reveals that after the accused was apprehended, he was given a notice informing him about his right to be searched in presence of Magistrate or Gazetted Officer if he so desires. Pancha-nama shows that the accused stated that he did not require to be searched in presence of Magistrate or Gazetted Officer. After that police party took search and completed other formalities. The learned counsel contended that mere informing accused of his right to be searched in presence of Magistrate or Gazetted Officer is not sufficient and that it was also necessary that he should have been produced before the Magistrate or Gazetted Officer and then only it could be said that provisions are duly complied. In support of this, he placed reliance upon Narcotics Central Bureau v. Sukh Dev Raj Sodhi, 2011 All MR Criminal 2356: (AIR 2011 SC 1939). From that judgment it appears that having informed accused of his right to be searched before the Magistrate or Gazetted Officer and after the accused had opted to be searched before Gazetted Officer, he was not taken to the Gazetted Officer nor his search was taken in presence of Gazetted Officer. Therefore, the Supreme Court held that provisions of Section 50 were not complied. If the accused opts to be searched either in presence of the Magistrate or Gazetted Officer, then it becomes duty of the police to take his search in presence of such...
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