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Synopsis

The Bombay High Court has recently observed that parents and a brother facing prosecution under an NDPS case cannot be grounds to deny relief to a person.

“The fact that the parents and brother of the applicant are facing prosecution for offences under the NDPS Act, cannot be a ground to deny relief to the applicant, as he has made out a case in his favour,” the order reads.

A single-judge bench of the high court, comprising Justice Manish Pitale, was hearing a bail application filed by a man booked under the NDPS Act. The applicant was arrested by the police on 9th February 2021 after 357 grams of Mephedrone (MD) was recovered from his flat, and 30 grams of ganja was recovered from the applicant himself.

The investigation was completed, and charges were framed in February 2024. The high court had earlier, in March, directed the prosecution to complete the trial within six months. However, only summons were issued to witnesses, and they were not even examined.

The applicant contended that the recovery from the flat and his person was vitiated, as the documents on record revealed that the mandatory requirements of the law were not satisfied.

He submitted that when the officials reached his apartment, the door was locked. Nonetheless, the officer obtained a second key from the building secretary and opened the apartment.

The NCB relied on a Supreme Court judgment, which observed that drug abuse is a social malady and that accused persons indulging in such nefarious activities should not escape on technical pleas.

The high court, in its order, observed that the manner in which the officials entered the apartment raised serious doubts about the recovery.

“This Court is of the opinion that the applicant has indeed made out a prima facie case in his favour to raise serious suspicion about the manner in which the whole exercise was carried out by the officials of the NCB. This Court is of the opinion that recovery of contraband in such a manner, whereby the door of the flat was opened using a second key, provided by the secretary of the society, where the flat was located, is a factor that inures to the benefit of the applicant and it creates a serious doubt about the recovery of contraband from the said flat,” the order reads.

The panchnama stated that when the officials informed the applicant that he was going to be searched, he voluntarily took out the contraband from his pocket and handed it to the officials.

“..it was incumbent upon the said official under Section 50 of the NDPS Act, to inform the applicant about his right to be searched in the presence of a Gazetted Officer or Magistrate. The said requirement could not have been circumvented by simply stating that the applicant voluntarily took out the aforesaid contraband from his pocket and handed it over to the officials of the NCB,” the order reads.

Accordingly, the high court granted bail to the applicant.

Case title: Wasi Ahmad Ansari @ Chotu so Kamar vs NCB