Case Note & Summary
The applicant, Siraj Shaikh Nasir Munshi, filed a bail application under Section 439 of the Code of Criminal Procedure, 1973 in connection with C.R. No. II-116 of 2017 registered with Mumbra Police Station for offences punishable under Section 8(c) read with Rules 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The prosecution case was that on 14 November 2017, based on secret information, the police intercepted a white Hyundai Verna car near Kalsekar Hospital, Mumbra. Two persons, Mubashir Hamza Matwankar (accused no. 1) and Mohammad Shayan Abdul Sakur Khan (accused no. 2), alighted from the car. Upon search, 55 grams of Mephedrone was recovered from accused no. 1 and 20 grams from accused no. 2. During investigation, accused no. 1 disclosed that the contraband was supplied by the applicant. The applicant was arrested on 16 November 2017. The applicant contended that he was not present at the time of recovery, no contraband was recovered from him, and the only evidence against him was the statement of co-accused which is inadmissible. The prosecution opposed bail citing the rigours of Section 37 of the NDPS Act. The court analyzed the compliance of Section 50 of the NDPS Act and found that the accused were not informed of their right to be searched before a gazetted officer or magistrate. The court also noted that the applicant was not found in possession of any contraband and the statement of co-accused cannot be used as substantive evidence. The court held that the rigours of Section 37 are not attracted and granted bail to the applicant on certain conditions.
Headnote
A) Narcotic Drugs and Psychotropic Substances - Bail - Section 37 NDPS Act - Rigours of Section 37 not attracted if there is non-compliance of Section 50 - The court held that since the applicant was not present at the time of search and recovery, and the only evidence against him was the statement of co-accused, the rigours of Section 37 are not applicable. (Paras 1-27) B) Narcotic Drugs and Psychotropic Substances - Search and Seizure - Section 50 NDPS Act - Right to be searched before a gazetted officer or magistrate - The court observed that the prosecution failed to comply with Section 50 as the accused were not informed of their right to be searched before a gazetted officer or magistrate. (Paras 10-15) C) Evidence - Confession - Statement of co-accused - Not admissible as substantive evidence - The court noted that the only material against the applicant is the statement of co-accused, which is not admissible under the Evidence Act. (Paras 16-20)
Issue of Consideration
Whether the applicant is entitled to bail under the NDPS Act considering the alleged recovery of contraband and the compliance of Section 50 of the NDPS Act
Final Decision
The court allowed the bail application and directed the applicant to be released on bail on executing a personal bond of Rs. 25,000 with one or more sureties. The applicant was directed to attend the police station once a month and not tamper with evidence.
Law Points
- Section 50 NDPS Act requires informing accused of right to be searched before a gazetted officer or magistrate
- non-compliance vitiates search
- conscious possession must be established for conviction under NDPS Act
