The court emphasized strict compliance with procedural safeguards under the NDPS Act, highlighting that significant lapses can undermine the prosecution's case, especially in light of prolonged incarceration without trial.

JUDGMENT :

1. Heard Mr. Pandit, learned Advocate for Applicant and Mr. Dedhia, learned APP for Respondent – State. Perused the record.

2. Applicant seeks Bail in connection with C.R. No.14 of 2022 registered with the Wadala Police Station for offences punishable under Section 8(c), 20(c) and 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (for short “NDPS Act”). Applicant is incarcerated since 31.01.2022.

3. Briefly stated, case of prosecution is that on 31.01.2022, PSI Masalkar attached to Wadala Police Station received secret information that two persons would be carrying narcotic substance ‘charas’ on a black colour KTM Duke bike on Chembur Sewree Container Road below the Eastern Freeway at around 8:00 pm. Accordingly, the raiding team laid a trap and at around 8:40 pm, and intercepted and searched two persons riding the motorcycle; viz; Pranit Khaire (Accused No.2) who was riding the bike and present Applicant (Accused No.1) who was the pillion rider. It is prosecution case that during search, 1300 grams of charas (commercial quantity) was found in a polythene bag carried by Applicant in his hand and 700 grams of charas carried by Accused No.2 in a carry bag on his shoulder.

4. Mr. Pandit, learned Advocate appearing for the Applicant would submit that the raid was conducted after sunset and no authorization was obtained and hence the seizure is vitiated. He would submit that there is non-compliance of provisions of Sections 42 and 50 of the NDPS Act. He would submit that statutory Notice under Section 50 of NDPS Act was not served on him. He would submit the seizure of the contraband was done at 08:40 p.m. on 31.01.2022 but only on 02.02.2022 belatedly letter was issued by Wadala Police Station to the Magistrate Court and the inventory panchnama before the Magistrate was drawn much later on 05.03.2022 and hence there has been substantial delay in drawing up of the inventory panchnama thereby resulting in non-compliance of the provisions of Sections 52 and 52-A of the NDPS Act.

4.1. He has drawn my attention to the order passed by this Court (Coram: G.A. Sanap, J.) whereby Co-Accused No.2 who was riding the bike has been released on bail on 04.11.2023. Next, he has drawn my attention to order dated 20.02.2023 passed by this Court (Coram: M.S. Karnik, J.) whereby Co-Accused No.3 who is allegedly the supplier of the contraband has been granted bail. Hence, on the ground of parity but most importantly non-compliance of the provision of the NDPS Act he would urge this Court to grant bail to the Applicant. He would argue that charge-sheet has been filed but there is no possibility of the trial concluding in the near future as it has not commenced and Applicant is incarcerated for a period of 3 years.

4.2. In support of his submissions, Mr. Pandit has relied upon the following decisions of the Supreme Court and this Court:-

(i) Ankur Chaudhary Vs. State of Madhya Pradesh, 2024 SCC OnLine SC 2730

(ii) Javed Gulam Nabi Shaikh Vs. State of Maharashtra and Anr., 2024 SCC OnLine SC 1693

(iii) Jalaluddin Khan Vs. Union of India, 2024 SCC OnLine SC 1945

(iv) Cynthia Bandu Udanshive Vs. State of Maharashtra, Cri. Bail Application No.823 of 2024 decided on 09.08.2024

(v) Mohammad Jakir Nawab Ali Vs. State of Maharashtra thr. P.S.O., 2024 SCC OnLine Bom 3198; and

(vi) Kamlesh Sakhraj Gupta Vs. Union of India and Anr., Cri. Bail Application No.985 of 2024 decided on 12.12.2024

4.3. Considering the aforesaid facts and circumstances, he would urge the Court to enlarge the Applicant on bail on any conditions as deemed fit by the Court.

5. PER CONTRA, Mr. Dedhia, learned APP appearing for the Respondent-State would at the outset submit that commercial quantity (1300 grams) of charas has been recovered from the present Applicant whereas co-accused No.2 has been granted bail as the quantity of charas recovered from him was only 700 grams which is less than the commercial quantity. He would submit that as commercial quantity is involved in the pre