Bombay HC refuses bail to man found travelling in SUV with 500 kg ganja in 2018

Non-compliance of search related provision of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 cannot be considered for granting bail to an accused, the Bombay high court said last week while refusing bail to a Malegaon resident arrested after 500 kg ganja was seized from a SUV in which he was travelling.

The accused, Kalu Mohite, was arrested by the Azad Maidan unit of the anti-narcotics cell (ANC) of the Mumbai police on March 13, 2018 while traveling in a SUV in which the narcotic was found. Acting on a specific tip off, the ANC had intercepted the vehicle at Mulund check post and apprehended three persons, including Kalu and driver Sanjay Mohite. The drug material was allegedly kept in 13 gunny bags in the vehicle.

After failing to secure bail on the ground of Covid-19 pandemic from special NDPS court, Kalu had moved HC contending that he was falsely implicated in the case. He claimed to be a gratuitous passenger and did not know that the contraband material was being transported in the vehicle.

The claim, however, failed to impress justice Bharati Dangre after additional public prosecutor AA Takalkar pointed out that Kalu knew the driver of the vehicle Sajay Mohite and Kalu’s call data record showed that he was in touch with him.

Kalu’s counsel, advocate Pritam Runway also contended that the ANC had failed to comply with certain mandatory provisions, like section 50 of the NDPS Act,which confers right on the accused to get himself searched in presence of a gazetted officer or a magistrate.

Runway relied on the Constitution bench judgment of the Supreme Court in Baldev Singh’s case to support his contention that failure to comply with section 50 vitiates the trial and Kalu was entitled to bail on the ground of non-compliance of the mandatory provision.

Justice Dangre, however, refused to accept that the non-compliance by itself would be a ground to release the accused on bail.

The judge said the compliance of section 50 has been held to be

mandatory by the Constitution bench, obliging the officer concerned to inform the suspect of his right to be searched in presence of the nearest gazetted officer or magistrate.

“However, it has also been held that after being informed,

whether such a person opted for such a course or not would be

question of fact,” the judge said, adding that the safeguard contained in section 50 is to ensure that the persons are only searched with a good cause and also to maintain the veracity of evidence derived from such search.

The HC clarified that “this, however, would be required to be established at the trial” and “at the stage of bail the said factor cannot be taken into account.”