Ajay IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL BAIL APPLICATION NO. 5147 OF 2024 Ismail Abdul Shaikh .. Applicant Versus Union of India and Anr .. Respondents ....................

 Mr. Shreerat Kamath a/w Ms. Puja Yadav, Advocates for Applicant.  Mr. Shreeram Shirsat, APP a/w Ms. Karishma Rajesh and Mr.

Shekhar Mane, Advocates for Respondent No. 1 - Union of India  Ms. Rajeshree V. Newton, APP for Respondent No. 2 – State.

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CORAM : MILIND N. JADHAV, J.

DATE : APRIL 02, 2025.

P.C.:

1. This is an Application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 seeking Regular Bail in connection with File No. NCB/MZU/C.R-32/2020 registered with Narcotics Control Bureau, Mumbai Zonal Unit for offences punishable under Sections 8 (c), 22 (b) (ii), 22, 27, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’). Applicant is arrested on 08.11.2020 and he is incarcerated for 4 years 4 months 25 days.

2. It is prosecution case that on 03.11.2020 the Narcotic Control Bureau received specific information to the effect that a person was reaching near Bhim Nagar, J.P. Road, Andheri West between 8:00 to 9:00 p.m. in an Innova Car bearing No. MH 43 V 6795 for the purpose of selling Ganja. Upon receiving the information it was reduced in writing and was forwarded to the authorities as per the provisions of NDPS Act. Two panchas were brought and were appraised of the search, seizure and arrest procedure under the NDPS Act, panch witnesses conducted a search of the police personnel and a pre-trap panchanama was prepared. At about 20:35 hours an Innova car bearing the same number arrived at the spot and four (4) persons in the car were found behaving suspiciously, raiding party intercepted them and upon questioning they failed to answer. Pursuant to which they were appraised of their rights under Section 50 of the NDPS Act. On search, 702.1 grams of Ganja, 59.1 grams of Charas and 3.1 grams of MD in total was recovered from their bags. The contraband was duly seized, sealed, marked and offence was registered under the provisions of the NDPS Act.

3. In furtherance of Accused No. 1’s disclosure statement recorded on 04.11.2020, a raid was conducted on 07.11.2020 at about 17:10 hours at Applicant’s house. Raiding party alongwith two panchas reached Applicant’s house where an unknown individual was seen entering the premises where Applicant handed him an unidentified item for which he handed him some money. During the said exchange the raiding party entered the premises and 10 grams of MD was recovered from that unknown person and in total 79 grams of Mephedrone (commonly known as ‘MD’) was recovered at the instance of the Applicant. The contraband was duly seized, sealed and marked as ‘M-1’ ‘M-2’ and ‘M-3’ and offence was registered under Sections 8 (c), 22 (b) (ii), 22, 27, 28 and 29 of NDPS Act.

4. Mr. Kamath, learned Advocate for the Applicant would submit that Applicant is falsely implicated in the present case. He would submit that Applicant’s indictment is on the basis of Accused No. 1’s statement under Section 67 of the NDPS Act which is inadmissible in law. He would submit that prima facie there is infraction of Rules 3 and 10 of the Narcotics Drugs & Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 as recovery is effected in respect of 1 packet weighing 63 grams of MD and other from the 11 packets weighing 16 grams in total. He would draw my attention to the seizure panchanama appended at page No. 144 wherein it is seen that 11 small packets of MD were found in separate zip-lock polythene bag. However on recovery the same have been mixed for the purpose of quantifying and weighing the same which is impermissible in law.

4.1. He would draw my attention to the glaring error in the prosecution case, from the Certification by Magistrate under Section 52A of the NDPS Act dated 23.12.2020 appended at page No. 495 it