HC grants bail to suspected drug supplier after finding flaws in probe

Bombay High Court grants bail to suspected drug dealer arrested with commercial quantity of Mephedrone (MD) by the Narcotics Control Bureau in January 2021 due to flaws in the investigation.

MUMBAI: The Bombay high court on Thursday granted bail to a suspected drug dealer, who was purportedly arrested with commercial quantity of Mephedrone (MD) by the Narcotics Control Bureau (NCB) in January 2021.

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A single judge bench of justice Anuja Prabhudessai granted bail to Chand Riyaz Shaikh after finding that the agency did not adhere to mandatory provisions of the Narcotic Drugs and Psychotropic Substances (NDPS) Act 1985, and there were flaws in drawing samples from the seized contraband and discrepancies like mentioning of the FIR number in a statutory notice issued at the spot—much before registration of the offence.

The NCB had arrested Shaikh on January 2, 2021, in Bandra following a specific tip-off that he was going to make delivery of a consignment and allegedly found 400 gram of MD, a synthetic stimulant drug, in four zip-lock plastic pouches hidden in his scooter’s dicky. He was booked under relevant sections of the NDPS Act for possession of a commercial quantity of contraband material.

He had moved the HC through advocates Agastya Desai, Ayaz Khan and Mithilesh Mishra after the special NDPS court on December 16, 2021, rejected his bail plea primarily on the ground that he was found distributing commercial quantity of MD. His counsel had submitted that the NCB officers had failed to adhere to mandatory requirements under the NDPS Act and several discrepancies raised doubts on the genuineness of the seizure.

Justice Prabhudessai accepted the contention that despite specific information, the search was conducted and the contraband was allegedly seized from a private vehicle between sunset and sunrise without warrant or authorisation.

“It is not in dispute that search, seizure as well as arrest was affected without warrant or authorisation. The officer concerned has not recorded reasons for his belief in terms of provision to section 42 (1) of the NDPS Act and the search and seizure, which is in contravention of mandatory provision of section 42 of the Act, prima facie makes the recovery doubtful,” the bench said.

The court also noted that the contraband was seized under panchanama drawn at the place of the incident and concluded at about 23.50 hours. The panchanama stated that a notice under section 67 (transport of psychotropic substance) of the NDPS Act was served on Shaikh at the spot of the incident, but the notice, which was issued much before registration of the FIR, mentioned the FIR number. “Indication of crime number in the notice, which was allegedly issued at the spot, before registration of the crime, prima facie raises a serious doubt about the prosecution case,” the court added.

The court also took note of the fact that the spot panchnama mentioned that the contents of all the four pouches were collected in one bag and samples were drawn, not separately – as required under the applicable rules, but after pouring contents of all the four pouches in one larger packet at the spot. However, Shaikh had also pointed out that the photographs released by the NCB to the media showed him at the NCB office along with the four separate pouches.