9911796707
TMI Blog2024 (5) TMI 1477X X X X Extracts X X X X X X X X Extracts X X X X ..... is interval of time between the seizure and inventory assumes significance in the context of the fact that the examination report issued by CFSL dated 21st February, 2022, indicates, inter alia, that the Exhibit M1, a transparent zip lock bag containing brown colour powder, stated to be 5 gm MD, was received for analysis, though the sample which was drawn from the contraband allegedly recovered from the person of the applicant was allegedly a white colour powder substance as recorded in the seizure panchanama. Prima facie, there is discrepancy in the description of the contraband which was allegedly seized from the applicant and sample collected therefrom, and the sample which was received for analysis by the CFSL. As the identity of the sample is in the corridor of uncertainty, and the complicity of the applicant is primarily based on the seizure of the contraband from the applicant, a prima facie case to hold that eventually the applicant may not be found guilty of the offences can be said to have been made out. In any event, the applicant has been in custody since 4th October, 2021. The applicant has been incarcerated for 2 and half years. There are substance in the submission o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leged search of the contraband substance from the possession of the applicant is thoroughly vitiated on account of non-compliance of the mandate contained in section 50 of the NDPS Act, 1985, on two counts. First, the appraisal memo does not specifically inform the applicant that he has a legal right to be searched 'only' before the nearest Magistrate or Gazetted officer and, second, despite the applicant not availing the right to be searched before the Magistrate or Gazetted officer, it was incumbent upon the NCB officials to conduct the search before the Gazetted officer. To lend support to the first submission, reliance was placed on the decision of this Court in the case of Sholadoye Samuel Joy vs. The State of Maharashtra BA No.2295 of 2021 Dt. 20/01/2022. and in respect of the latter submission reliance was placed on a decision of the Supreme Court in the case of Arif Khan @ Agha Khan vs. State of Uttarakhand (2018) 18 Supreme Court Cases 380. 6. Secondly, no credence can be given to the search and seizure as Aadil Usmani, the alleged panch witness, is a stock witness of the NCB and he has acted as a panch in as many as 17 other crimes. Mr. Mor further submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of Nabi Alam v. State (Govt. of NCT of Delhi) 2021 SCC OnLine Del 3055. In the context of the decision of the Supreme Court in the case of Arif Khan @ Agha Khan v. State of Uttarakhand (2018) 18 Supreme Court Cases 380. on which reliance was placed by Mr. Mor. 9. Mr. Shirsat, further submitted that the weight to be attached to the evidence of the panch witness would be a matter for trial. At this stage, a panch witness can not be branded as a liar for having acted as a panch in other cases. To this end, Mr. Shirsat placed reliance on the Division Bench judgment of this Court in the case of Shaukat Ali Sayyed Rashid v. State of Maharashtra 2000 (2) Mh.L.J. 175. and a judgment of a learned single Judge in the case of Sultan Ahmad Abdul Rauf v. State of Maharashtra 2019 SCC OnLine Bom 7584. The challenge to the seizure, on behalf of the applicant, based on the CCTV footages was also stated to be a matter for trial. 10. Mr. Shirsat, learned Spl. PP would further urge that there is scrupulous compliance of the mandatory provisions contained in section 52A of the NDPS Act, 1985 and, in fact, the investigating officer has made the application before the jurisdictional Magistrate o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorized officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. (emphasis supplied) 16. Evidently, the Supreme Court has not used the word, only . It was in paragraph 6 of the judgment in the case of Vijaysinh Jadeja (supra) wherein the Supreme Court noted the submission on behalf of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Adil Usmani being a stock panch, though the applicant has placed on record documents to indicate that Adil Usmani has acted as panch witness for the NCB in as many as 17 crimes, under a year, which may give rise to an inference that Mr. Adil Usmani is at the beck and call of the police, yet, the weight to be attached to the testimony of Adil Usmani, would be a matter for trial. I do not consider it necessary to delve into the decisions cited by Mr. Mor and Mr. Shirsat in respect of the rival submissions as the issue boils down to the weight to be attached to the testimony of such a witness. Nonetheless, the Court can not simply brush aside the fact that Adil Usmani has acted as a panch witness in so many cases. If there are concomitant circumstances, the fact that a premier agency employs the same panch witness in a number of crimes may impair the search and seizure, in a given case. 23. The aspect of delay in conducting the proceedings under section 52A of the NDPS Act, 1985 is required to be appreciated in the light of the obligation of the empowered officer under section 52A(2) of the NDPS Act, 1985 and the duty cast on the Magistrate under sub section (3) of Section 52A. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire evidence to bolster up the submission that there was possibility of such change in colour by the passage of time. It is in this context, the aspect of delay in conducting the inventory of the seized substance and drawing of samples before the Magistrate and the analysis of the sample by the CFSL assumes critical salience. 27. As the identity of the sample is in the corridor of uncertainty, and the complicity of the applicant is primarily based on the seizure of the contraband from the applicant, a prima facie case to hold that eventually the applicant may not be found guilty of the offences can be said to have been made out. 28. In any event, the applicant has been in custody since 4th October, 2021. The applicant has been incarcerated for 2 and half years. I find substance in the submission of Mr. Mor that having regard to the number of accused arraigned in the crime, and the evidence which the prosecution may be required to be adduce to bring home the charge against the accused, it is extremely unlikely that the trial can be concluded within a reasonable period. 29. It is well neigh settled that a long period of incarceration without a realistic prospect of expeditious conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
