Bombay HC grants youth bail in drug case over police's failure to follow mandated procedure

Bombay High Court/ File Photo

The Bombay High Court granted bail to a 22-year-old man, arrested for alleged possession of 50kg of ganja (cannabis) observing that the Mumbai police's Anti-Narcotic Cell (ANC) had failed to follow legally mandated search and seizure procedure making recovery seem doubtful.

A report in PTI stated that a single-judge bench of Justice Anuja Prabhudessai on September 15 granted Shivraj Satpute (22) bail. Satpute was allegedly arrested by the ANC on July 6, 2021, at his Ahmednagar residence from where they also had seized 50kg of ganja.

Reportedly, the accused, in his bail plea, had claimed that the search at his residence was conducted between sunset and sunrise and that the cops had not complied with the mandatory procedure of seizure and sample which renders seizure illegal. Meanwhile, the prosecution had said that a search was made at Satpute's residence pursuant to a disclosure statement by a co-accused in the case and thus was a chance recovery.

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The bench, according to the PTI report, noted in its order that per the provisions of the Narcotic Drugs and Psychotropic Substances (NDPS0 Act, an officer can carry out searches between sunrise and sunset without a warrant or authorisation. "The scheme indicates that in the event the search has to be made between sunrise and sunset, the warrant would be necessary unless the officer has reasons to believe that a search warrant or authorisation cannot be obtained without affording the opportunity to the offender to escape and the grounds of belief have to be recorded," HC had reportedly noted.

The court further observed in the present case, the house of arrestee was searched and cannabis was allegedly seized between sunset and sunrise without warrant or authorisation. The court also denied accepting prosecution's argument that it was chance recovery and said that the co-accused, on whose statement Satpute's home was searched, was arrested five days prior.

"Hence, prima facie it was not a case of chance recovery or seizure in the normal course of investigation, but it was on the basis of specific information given by the co-accused," the court said.

The court noted since search and seizure is in contrast to mandatory provisions of Section 42 of the NDPS Act, prima facie it makes recovery of narcotic substance seem dubious. The bench also said that the accused, who has been in custody for the last two years, had no criminal antecedents and that the trial is not likely to conclude within a reasonable time. "The Supreme Court has time and again observed that prolonged custody infringes the fundamental right under Article 21 of the Constitution of India," the court said while granting Satpute bail on a surety of Rs 50,000.

With PTI inputs