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Synopsis

The Bombay High Court has recently granted bail to a 22-year-old individual who was found in possession of 50 kg of Ganja on the ground that the arrest had taken place after sunset and before sunrise without the presence of a warrant.

Justice Anuja Prabhudesai presided over the bail application filed by Shivraj Gorakh Satpute, who had been arrested by the Anti Narcotics Cell (ANC).

In the case, the ANC had initially apprehended Vinod Rajaram Shinde, from whom 22 kg of Ganja had been recovered. During the subsequent investigation, Shinde provided information that led to the arrest of Samadhan Tawde, who was found in possession of 10 kg of Ganja. Based on information obtained from Tawde, the police arrested Shivraj Gorakh Satpute in Ahmednagar.

Satpute had initially filed an application before the Sessions court, which subsequently rejected his plea. Following this, Satpute approached the high court for relief.

During the proceedings, the counsel representing Satpute argued that the search had been conducted between sunset and sunrise without adhering to the provisions outlined in Section 42(2) of the NDPS Act.

Furthermore, the chemical analysis report indicated that the contraband submitted for analysis contained seeds, tops, and flowering/fruiting tops, which raised doubts about the quantity of the alleged contraband seized from Satpute.

The Additional Public Prosecutor contended that the contraband was recovered as a result of the disclosure statement made by a co-accused who had agreed to lead them to the location where he had collected the contraband.

Consequently, he argued that since it was a case of chance recovery, compliance with the procedure outlined in Section 42 of the NDPS Act was not required.

The high court pointed out that the information on record indicated that the co-accused had disclosed the name and address of the Applicant.

Therefore, prima facie, this did not appear to be a case of chance recovery or seizure in the ordinary course of an investigation. Instead, it seemed to be based on specific information provided by the co-accused.

The bench further noted that prima facie, the recovery appeared to be doubtful since the provisions of Section 42 had not been complied with.

“It is not the case of the prosecution that the empowered officer did not have sufficient time to obtain warrant or authorization without affording opportunity to the Applicant to escape or conceal the evidence. The concerned officer has not recorded reasons for such belief in terms of proviso to Section 42(1) of the NDPS Act. Hence, prima facie the search and seizure, which is in contravention of the mandatory provisions of Section 42 of the NDPS Act prima facie makes the recovery doubtful,” the order reads.

The high court took into consideration that the applicant was 22 years old and had been in custody for 2 years. Furthermore, the applicant had no prior criminal record.

The court observed that the Supreme Court has consistently noted that prolonged custody infringes upon the fundamental right protected under Article 21 of the Constitution of India.

Additionally, the bench said that the grant of bail on the grounds of undue delay in the trial is not constrained by Section 37 of the NDPS Act.

Case title: Shivraj Gorakh Satpute vs State of Maharashtra