Search sans warrant, seizure of 50 kg ganja doubtful says Bombay HC; grants bail to 22-yr-old man | Mumbai News – Times of India

MUMBAI: Bombay high court granted bail to a young man, Shivraj Satpute (22), arrested by the Narcotics Control Bureau (NCB) in 2021, for alleged recovery of 50 kg of Ganja—commercial quantity– from his house, holding that apparent failure to follow a legally mandated search and seizure procedure made the recovery doubtful.
The NCB case argued by additional public prosecutor A A Takalkar said its Anti-Narcotic Cell team had arrested a man named Vinod Shinde on July 1, 2021 in Malad near Kathewadi Chowk. He was carrying two bags. His conduct seemed suspicious to the sleuths. He tried to flee on seeing them, but was apprehended. The NCB found 22 kg of Ganja on him. He named another man, Samadhan Tawde, who the police then arrested in Nashik two days later with 10 kgs of Ganja. Tawde named Satpute, from whose house in Ahmednagar, NCB said it seized the 50 kilos of Ganja and arrested him on July 7, 2021.
The NCB filed its chargesheet accusing Satpute of commercial quantity possession of Ganja, a contraband, under the Narcotics and Psychotropic Substance Act (NDPS).
Last June a special trial judge rejected Satpute’s bail plea. He then approached the HC for bail. His lawyer Aashish Satpute arguing before Justice Anuja Prabhudesai said the search was conducted between sunset and sunrise without complying with provisions of NDPS Act section 42 (2) requiring them to send a written note within 72 hours to their superior and seek permission. Satpute said only on information from a co-accused the NCB team raided his client’s place after sunset, rending the raid illegal.
The lawyer also argued that Ganja, legally defined as a “flowering or fruiting tops of the cannabis plant (excluding seeds and leaves when not accompanied by tops) but the chemical analysis report reveals that the contraband forwarded for analysis contained seeds, tops and flowering tops, a discrepancy which “raises a doubt about the quantity of the contraband allegedly seized.”
The NCB argued it was a “chance recovery and compliance of section 42 of NDPS Act was not necessary.”
The prosecutor said any discrepancy in the sample could be decided at the trial stage,not at the bail stage.
Justice Prabhudessai noted that under section 42 (1) of NDPS Act, as held by Apex Court, NCB can carry out a raid between sunrise and sunset sans warrant. In this case, the Judge noted Satpute’s house was search between sunset and sunrise without warrant and “there was no compliance of Section 42 of the NDPS Act.’’ The HC said since the NCB team was acting on specific information from co-accused it “was not a case of chance recovery.”
The HC also said the accused is only 22 years old, in custody for more than two years, with no criminal antecedents and given the large pendency of cases, it is evident that the trial is not likely to conclude within a reasonable time. The Apex Court has time and again observed that prolonged custody infringes the fundamental right under Article 21 (right to life and liberty) of the Constitution of India and grant of bail on the ground of undue delay in trial is not fettered by Section 37 of the NDPS Act.