IMPORTANT POINT
Bail – Long period of incarceration without a realistic prospect of expeditious conclusion of trial renders detention of accused as an undertrial prisoner foul of right to speedy trial.

JUDGMENT

Heard the learned counsel for the parties.

2. The applicant, who is arraigned in C.R. No. 94 of 2021 registered with Narcotics Control Bureau, Mumbai for the offences punishable under sections 20(b)(ii)(A), 21(b), 22(b), 22(c), 25, 27, 28, 29 and 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act, 1985), seeks to be enlarged on bail.

3. On 2nd October, 2021 the officers of the NCB effected seizure of narcotic substance from the co-accused at International Cruise Terminal, Green Gate, Mumbai. The co-accused made disclosures. Mohak Jaiswal, one of the co-accused, named the applicant as one of the peddlers.

4. Pursuant to an intimation, on 3rd October, 2021 at about 7.40 pm, a surveliance was mounted opposite Shoopers Stop Mall, Juhu Link Road, Mumbai. The applicant, whose features matched the description given by the informant, arrived near the bus pick up shed. The applicant was accosted. He was apprised of his legal right to be searched before the nearest Magistrate or gazetted officer under section 50 of the NDPS Act, 1985. The applicant volunteered to be searched by the NCB officials. In the search of the applicant, two transparent zip lock polythene pouches consisting of 2.5 gms tablets purported to be Ecstasy pills (MDMA) and 54.3 gms off white crystalline powder purported to be Mephedrone (MD) were found. The contraband articles were seized. The applicant came to be arrested on 4th October, 2021 at about 6.00 pm.

5. Mr. Kushal Mor, the learned counsel for the applicant, submitted that the applicant has been falsely roped in as is evident from the material on record. The alleged search of the contraband substance from the possession of the applicant is thoroughly vitiated on account of non-compliance of the mandate contained in section 50 of the NDPS Act, 1985, on two counts. First, the apprisal memo does not specifically inform the applicant that he has a legal right to be searched ‘only’ before the nearest Magistrate or Gazetted officer and, second, despite the applicant not availing the right to be searched before the Magistrate or Gazetted officer, it was incumbent upon the NCB officials to conduct the search before the Gazetted officer. To lend support to the first submission, reliance was placed on the decision of this Court in the case of Sholadoye Samuel Joy vs. The State of Maharashtra, BA No.2295 of 2021 Dt. 20/01/2022. and in respect of the latter submission reliance was placed on a decision fo the Supreme Court in the case of Arif Khan @ Agha Khan vs. State of Uttarakhand, (2018) 18 Supreme Court Cases 380.

6. Secondly, no credence can be given to the search and seizure as Aadil Usmani, the alleged panch witness, is a stock witness of the NCB and he has acted as a panch in as many as 17 other crimes. Mr. Mor further submitted that the CCTV footages at the place of seizure indicate that the panch witness entered at the alleged spot of recovery with a bag in his hand and, subsequently, rode away on the applicant’s scooty. Thirdly, there is non-compliance of the mandate contained in section 52A of the NDPS Act, 1985 as those proceedings were carried out belatedly on 4th December, 2021. The delay of almost two months in drawing the samples gives rise to the issue of safe custody of the seized substance during the intervening period. Fourthly, the CA report indicates that the sample which was received for analysis contained brown powder as against white powder allegedly recovered from the possession of the applicant. Lastly, it was submitted that the applicant has been incarcerated for more than 28 months. Rest of the accused have been released on bail. In the backdrop of the number of accused and the evidence which the prosecution is required to adduce at the trial it is extremely unlikely that the trial can be concluded in a reasonable period. Thus on the count of long incarceration as well, the applicant deserves to be enlarged on bail.

7. Mr. Shirsat, the learned Special PP, c