S.42 NDPS Act | No Reason For Search After Sunset Without Warrant: Bombay HC Grants Bail To Man Booked For Alleged Possession Of 50 Kgs Ganja

The Bombay High Court recently granted bail to a 22-year-old man booked for possession of commercial quantity of Ganja after 50 Kgs Ganja was allegedly seized from his home between sunset and sunrise based on information given by another accused.

Justice Anuja Prabhudessai observed that the seizure was not a chance recovery, and there was nothing to show the officer's reasonable belief that obtaining a warrant for search between sunset and sunrise would allow the offender to escape.

“the said information was given at about 3.00 p.m. and the search and seizure was conducted after sunset. 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”, the court observed.

The applicant Shivraj Satpute is booked under Sections 8(c), 20(c), and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

The prosecution asserted that on July 1, 2021, the Anti-Narcotic Cell recovered 22 kgs of Ganja from one Vinod Shinde after conducting personal search due to his suspicious behaviour. Shinde was allegedly carrying two bags and tried to flee after seeing the police.

According to the prosecution, the information given by Shinde led to the arrest of one Samadhan Tawde and alleged seizure of another 10 kgs of Ganja from his possession. Based on the information provided by Tawde, another 50 kgs of Ganja was found and seized from the applicant Shivraj Satpute's residence in Ahmednagar, the prosecution alleged. Satpute was arrested on July 6, 2021, and a charge sheet was filed against him.

The Sessions Court denied Satpute’s bail application on June 22, 2022. Hence the present bail application.

Advocate Aashish Satpute for the applicant argued that the search conducted between sunset and sunrise did not comply with Section 42(2) of the NDPS Act. He contended that there was non-compliance with the mandatory procedure of seizure and sample, which cast doubt on the legality of the seizure. Further, Advocate Satpute argued that while section 2(iii)(b) of NDPS Act defines Ganja as the flowering or fruiting tops of the cannabis plant, the chemical analysis report reveals that the contraband also contained seeds. This raises a doubt about the quantity of the contraband allegedly seized from the Applicant, he said.

APP AA Takalkar for the State submitted that the contraband's seizure was made based on the disclosure statement made by the co-accused regarding the person and place from where he had gotten the contraband. However, there was no specific information about the contraband. Therefore, according to her, it was a chance recovery and compliance with the procedure under Section 42 of Act was not necessary. She maintained that the seizure was of a commercial quantity of Ganja, and any discrepancies should be addressed during the trial.

Section 42(1) of the NDPS Act allows searches between sunset and sunrise without a warrant, provided that there is a reasonable belief that obtaining a warrant would allow the offender to escape. This belief must be recorded.

The court said that prima facie, this is not a case of chance recovery as the seizure was made based on specific information given by co-accused.

The court observed that the house search in this case had taken place between sunset and sunrise, without a warrant or authorization. Thus, prima facie, the search and seizure violated the mandatory provisions of Section 42 of the NDPS Act, which cast doubt on the seizure, the court held.

Additionally, the records indicated that the Investigating Agency had taken samples of the contraband without following Section 52(A) of the NDPS Act. The court cited the case of Simranjit Singh v. State of Punjab, where the Supreme Court observed that drawing samples from all the packets at the time of seizure was not in conformity with the law and created serious doubts about the substance being a contraband.

The court found that reasonable doubt had been raised about the Applicant's involvement in the alleged crime. The court opined that the trial was unlikely to conclude within a reasonable time. Considering the accused's young age, lack of criminal antecedents, the lengthy period of custody exceeding two years, the court directed his release on bail in the sum of Rs. 50,000/- with one or two sureties to the like amount.

Case no. – Bail Application No. 2865 of 2022

Case Title – Shivraj Gorakh Satpute v. State of Maharashtra