HC grants bail to eight accused of making, trafficking MD, citing procedural lapses

The Bombay High Court granted bail to eight accused of trafficking 20 kg of Mephedrone, citing procedural lapses in evidence handling.

MUMBAI: The Bombay high court on Monday granted bail to eight individuals accused of manufacturing and trafficking 20 kilograms of Mephedrone (MD), citing that they found critical procedural lapses in the handling of evidence. Justice Gauri Godse ruled that the prosecution’s reliance on samples drawn on-site, instead of those certified by a magistrate, undermined the credibility of the evidence.

HC grants bail to eight accused of making, trafficking MD, citing procedural lapses

On October 7, 2020, authorities seized 20 kilograms of MD during an operation registered at Chakan Police Station, Pune. The operation found they were linked with several factories, including Sanyog Biotech, Nimbus Pharma, and Alkemi Industries. The accused are Kiran Machhindra Kale, 30, Afjal Hussain Abbas Sunsara, 45, Manoj Eknath Palande, 42, and Parshuram Bhalchandra Jogal, 37.

The prosecution alleged the MD was sold to Zuby Udoka, expanding the operation. However, the defence argued that the mandatory procedure under section 52-A (inventory and sampling before a magistrate) of the NDPS Act, requiring sampling and certification before a magistrate, was not followed. They contended this procedural lapse undermined the chargesheet filed on 28th September 2021 and cast doubt on the chemical analysis report.

The defense counsel led by advocate Sana Raees Khan with advocate Aditya Parmar and others argued that the mandatory procedure under section 52-A of the NDPS Act was not followed. Counsel for the applicants cited Supreme Court precedents, including Union of India vs. Mohanlal, asserting that samples must be certified by a magistrate to serve as primary evidence. The samples were drawn on-site and sent for chemical analysis without magistrate oversight, violating the legal requirements.

Special public prosecutor Shishir Hiray contended that at the time of the seizure in October 2020, the procedures in place allowed for samples to be collected on the spot. He argued that the chemical analysis reports confirmed the presence of MD and that the seized cash and equipment were linked to the accused. Hiray also invoked section 37 of the NDPS Act, which imposes strict conditions for bail, mandating proof that the accused is not guilty and unlikely to re-offend, particularly for serious drug offences, emphasizing that the applicants had to meet a twin test to secure bail.

Justice Gauri Godse, however, ruled that compliance with section 52-A of the NDPS Act was mandatory and that the absence of certified samples compromised the credibility of the prosecution’s evidence. The court noted that reliance on on-site samples, instead of those certified by a magistrate, was contrary to established legal principles. Additionally, the allegations against the applicants were based on circumstantial evidence, with no direct connection to the contraband seized.

Considering the applicants’ four years of incarceration, the lack of clear evidence, and the unlikelihood of an early conclusion to the trial, the court held that the applicants had satisfied the twin conditions under section 37 of the NDPS Act. Justice Godse ordered their release on bail on furnishing bonds of ₹50,000 each and one or two sureties in the same amount.