Panch Witness Not Authorized U/S 42 Of NDPS Act To Effect Search & Seizure: Mumbai Special Court

Special NDPS Judge VV Patil noted that on October 2, instead of an authorized officer (under Section 42 of the NDPS Act) searching Satija's room, female panch witness conducted search and seizure.

"So far as accused no.8 is concerned, as discussed above, she is also entitled to bail on the ground of illegal seizure and breach of provisions of Sec. 42 of NDPS Act," the order stated. 

Fact of the Case

Satija and her co-accused Gomit Chopra were arrested on October 3, 2021, couple hours after Aryan Shah Rukh Khan, for offences punishable under sections 8(c) r/w 22(b), 27, 28 and 29 of Narcotics Drugs and Psychotropic Substances Act, 1985. They were granted bail on October 30.

The NCB charged Satija with possession of intermediate quantities of contraband after 4 pills green colour ecstasy pills were found concealed in sanitary napkins in her room.

The NCB charged Gomit with possession of intermediate quantities of four pills of MDMA (ecstasy), total weighing 2.8 grams and 3 grams of cocaine.

Arguments

Advocate Ayaz Khan and Sartaj Sheikh for Satija contended that the seizure panchnama revealed that a female panch witness searched her room at the behest of an intelligence officer.

Khan relied on a Notification empowering the officers of various departments like Customs, Central Excise, Narcotics, DRI, NCB, etc., issued by Central Government in 1995. According to this notification only an officer of and above the rank of the Inspector in the department of Narcotics Control Bureau are empowered to exercise powers and perform searches and seizures Section 42.

"In the present case, as discussed above, search is taken by female panch who is not an empowered officer to effect search and therefore there is breach of section 42 of NDPS Act. Therefore, in view of observations made by Hon'ble High Court in above citations, present applicant/accused is entitled to grant of bail on that ground," the court observed.

The court relied on the judgement of Dilkush G. Sinai v. State of Goa where the division bench held that since the search was carried out by a panch witness, Section 42 cannot be said to be complied.

WhatsApp chats

The court observed that Whats App chats between Satija and Gomit are regarding only consumption of contraband and not regarding sale, purchase or for any other use of contraband.

"Therefore I find substance in the arguments advanced on behalf of applicants that on the basis of Whats App chats at the most it can be said that applicants are consumers of contraband."

The court further held that Aryan Khan and two others in the case have been granted bail by the Bombay High Court so Satija and Gomit were entitled for bail on the ground of parity. Moreover, prima facie conspiracy under section 29 of the NDPS Act is not made out, the court held.

The court rejected the accused's contentions of non-compliance of section 50 and allegations of illegal arrest.

So far, fifteen of the 20 accused in the Cordelia Cruise case have been granted bail.

Click Here To Read/Download The Order