Bombay High Court
Aman Sunil Singh vs State Of Maharashtra on 11 August, 2025
Author: Amit Borkar
Bench: Amit Borkar
2025:BHC-AS:34212
ba4759-2024.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.4759 OF 2024
Aman Sunil Singh ... Applicant
V/s.
The State of Maharashtra ... Respondent
ATUL
GANESH Mr. S.K. Kamble with Mr. Rohidas Bhor, & Ms. Manisha
KULKARNI
Digitally signed by
Jadhav for the applicant.
ATUL GANESH
KULKARNI
Date: 2025.08.11
11:14:14 +0530
Mrs. Mahalakshmi Ganapathy, APP for the respondent-
State.
CORAM : AMIT BORKAR, J.
DATED : AUGUST 11, 2025
P.C.:
1. By this application filed under Section 439 of the Code of
Criminal Procedure, 1973, the applicant is seeking regular bail in
connection with Crime Register No.670 of 2023 registered with
Shantinagar Police Station. The applicant is facing charges under
Sections 328, 372, and 276 of the Indian Penal Code, 1860,
Sections 18(a), 18(c), 27(b)(ii), and 27(d) of the Drugs and
Cosmetics Act, 1940, and Sections 8(c), 21, and 29 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (“NDPS Act” for
short).
2. The case of the prosecution, in brief, is that on 22nd August
2023, the police received secret information that the applicant
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would arrive opposite Saibaba Mandir at around 6:00 PM carrying
prohibited contraband. Acting on this information, a trap was laid.
The applicant was identified by the informer, and the auto-
rickshaw used by him was intercepted. Upon searching in the
presence of two panch witnesses and a Food and Drug Inspector,
the authorities recovered six boxes containing 960 bottles of syrup
and 50 strips of tablets branded as “Alpratan-1”. The syrup was
found to contain codeine phosphate and chlorpheniramine
maleate, and the tablets contained alprazolam. During the course
of investigation, it came to light that one Gurfan had allegedly
supplied these goods to the applicant for the purpose of delivery.
The applicant was taken into custody on 1st November 2023.
3. Learned advocate for the applicant has contended that the
applicant has been falsely implicated in the present matter. It is his
submission that the applicant, being an auto-rickshaw driver, was
merely transporting the goods in good faith as part of his daily
work, without having any knowledge about the prohibited nature
of the contents. It was further submitted that there was no attempt
to conceal the goods, as the same were being carried in the vehicle
during broad daylight and were not hidden under the seat or in
any secret compartment. The learned advocate has also pointed
out that initially, the police proceeded under the provisions of the
Drugs and Cosmetics Act and conducted the seizure panchnama
and sampling accordingly. Only thereafter, almost three days later,
did they invoke the stringent provisions of the NDPS Act. It is
contended that the mandatory safeguards and procedures
contemplated under Sections 42, 50, and 52A of the NDPS Act
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have not been complied with. In particular, it is submitted that the
search was not preceded by a proper authorization and that there
was no recovery from the person of the applicant, and hence
Section 50 is not applicable. It is argued that mere possession
without knowledge or intent does not amount to “conscious
possession”. It is further submitted that the applicant is the sole
earning member of his family and has been in custody since 22nd
August 2023. The trial has not yet commenced, and the charge is
yet to be framed. Hence, it is prayed that the applicant be released
on regular bail.
4. On the other hand, the learned Additional Public Prosecutor
has opposed the bail application. She has drawn the Court’s
attention to the seizure panchnama, which shows that the
substances recovered included Alprazolam tablets and cough syrup
containing codeine phosphate and chlorpheniramine maleate, both
of which are regulated under the Drugs and Cosmetics Act and
also fall within the purview of the NDPS Act depending on the
quantity and composition. She pointed out that based on prior
secret information received by the concerned authorities under the
Drugs and Cosmetics Act, a trap was laid and the seizure was
accordingly carried out on 22nd August 2023. It is further
submitted that once it was found that the seized substances
contained narcotic drugs and psychotropic substances beyond the
permissible limits, the provisions of the NDPS Act came into play.
Regarding the argument on non-compliance of Section 50 of the
NDPS Act, the learned APP submitted that no personal search of
the applicant was conducted, and therefore, Section 50 has no
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application. In support of this proposition, she placed reliance on
the judgment of the Supreme Court in Ranjan Kumar Chadha v.
State of Himachal Pradesh, Criminal Appeal Nos.2239-2240 of
2011, decided on 6th October 2023, where it was held that Section
50 is not attracted in such cases. She further relied upon the
observations of the Apex Court in the said judgment highlighting
the serious threat posed by drug abuse and trafficking, which not
only destroys individuals but also severely impacts the society and
economy, and even funds unlawful activities including terrorism. It
is, therefore, her submission that considering the fact that the
applicant was found in possession of commercial quantity of
narcotic substance, the bar under Section 37 of the NDPS Act gets
attracted, and no case for grant of bail is made out. She, therefore,
prayed for rejection of the bail application.
5. I have carefully considered the rival submissions advanced
by the learned Advocate for the applicant and the learned
Additional Public Prosecutor. I have also perused the material
placed on record, including the FIR, seizure panchnama, and the
documents related to chemical analysis.
6. The record prima facie indicates that the applicant was
found in possession of a substantial quantity of substances, namely,
codeine phosphate syrup and alprazolam tablets, both of which are
covered under the NDPS Act when they exceed the permissible
quantity. The seizure was effected in the presence of panch
witnesses and a Food and Drug Inspector. Although initially the
action was taken under the provisions of the Drugs and Cosmetics
Act, it is evident that upon chemical analysis and confirmation of
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the composition and quantity of the seized substances, the
provisions of the NDPS Act came to be invoked.
7. The defence of the applicant that he was unaware of the
nature of the substances, and that he was merely acting as a
transporter, may be a matter of trial. At this stage, the material on
record, particularly the manner in which the contraband was
packed and transported in multiple boxes and strips, creates a
presumption of knowledge, which shifts the burden on the accused
under Section 35 of the NDPS Act. The concept of “conscious
possession” under the Act does not merely imply physical custody
but also knowledge and control over the substance. In the present
case, the fact that the entire material was found in the applicant’s
vehicle and was in his exclusive control at the time of seizure is
sufficient to prima facie suggest conscious possession.
8. As regards the contention raised on behalf of the applicant
regarding non-compliance with the procedural safeguards under
Sections 42, 50, and 52A of the Narcotic Drugs and Psychotropic
Substances Act, 1985, it is necessary to examine the applicability
and scope of each of these provisions in the factual backdrop of the
present case.
9. Section 50 of the NDPS Act mandates that when a person is
to be searched, he must be informed of his legal right to be
searched in the presence of a Gazetted Officer or a Magistrate. This
safeguard is intended to ensure fairness and prevent false
implication in cases where narcotics are allegedly found on the
body of an accused person. However, it is now well-settled in law
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that this requirement applies only when the search is of the person
of the accused, and not when the recovery is made from a vehicle,
premises, bag, or any other place which is not part of the accused’s
body.
10. In the present case, the record clearly shows that the
contraband substances, namely, bottles of codeine-based syrup and
strips of Alprazolam tablets, were recovered from the auto-
rickshaw driven by the applicant. There is no allegation or material
to suggest that any contraband was recovered from his person or
body. Thus, the requirement of informing the accused of his right
under Section 50 does not arise in the facts of this case.
11. This legal position has been authoritatively laid down by the
Supreme Court in the case of Ranjan Kumar Chadha v. State of
Himachal Pradesh, Criminal Appeal Nos. 2239-2240 of 2011,
decided on 6 October 2023. In that case, the Court reiterated that
Section 50 is not attracted where the recovery is made from a bag,
container, or vehicle, and not from the person of the accused. The
Court emphasized that the scope of Section 50 is restricted to
personal search, and its protection cannot be extended to every
seizure of narcotic substance made from places or objects
associated with the accused.
12. In light of the above settled legal position, and having regard
to the nature of the seizure in the present case, this Court finds no
merit in the submission that the mandatory provisions of Section
50 have been violated. The search and seizure from the vehicle do
not attract the safeguard under Section 50. Therefore, the
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contention raised on behalf of the applicant in this regard is liable
to be rejected.
13. As regards the contention regarding non-compliance of
Section 42 of the NDPS Act, it is necessary to first understand its
scope and object. Section 42 deals with situations where the
authorised officer receives prior information about the commission
of an offence under the NDPS Act and intends to conduct a search
of a building, conveyance, or enclosed place, between sunset and
sunrise, based on such information. It requires that the
information be taken down in writing, and a copy of the same be
forwarded to the immediate superior officer, as a safeguard
against misuse of power.
14. In the present case, the prosecution has placed reliance on a
specific secret information received prior to the incident, to the
effect that the applicant would be arriving at a particular location
at a particular time with contraband substances. Acting on the said
information, the police team laid a trap and intercepted the
applicant’s auto-rickshaw at around 6:00 PM in a public place, in
the presence of panch witnesses and a Food and Drug Inspector.
15. From the record, it is evident that the interception and
seizure occurred during day time, and that the place where the
trap was laid was an open and public road, not a closed building
or enclosed private place. This factual scenario assumes
importance because the Supreme Court has consistently drawn a
distinction between a search conducted in a public place and a
search of a building or enclosed space, as contemplated under
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16. In the present case, the seizure of contraband was made
from an auto-rickshaw that was parked or moving on a public
road. The record does not indicate that the seizure was made
inside any private place or enclosed building. Therefore, by
applying the ratio laid down in the above decisions, it is clear that
the case falls within the ambit of Section 43 of the NDPS Act and
not Section 42.
17. Accordingly, the procedural safeguards under Section 42,
such as reducing the information in writing and forwarding it to
the superior officer, were not mandatorily required to be followed
in the present case. The trap and seizure having been carried out
in a public place during broad daylight, the contention regarding
non-compliance of Section 42 is without merit and deserves to be
rejected.
18. Another submission advanced by the learned Advocate for
the applicant is that the initial action in the present case was taken
under the Drugs and Cosmetics Act, 1940, and that the police had
no authority to conduct the search and seizure under the said Act.
It is contended that only specialised authorities, such as the Drugs
Inspector or the Narcotics Control Bureau (NCB), are empowered
to deal with such offences, and therefore, the entire search
conducted by the local police is without jurisdiction and in breach
of the statutory scheme.
19. This submission, though attractive at first glance, cannot be
accepted in the light of the legal position and the facts of the case.
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20. It is true that under the Drugs and Cosmetics Act, certain
powers for inspection, search, and seizure are conferred upon
designated officers such as Drugs Inspectors, appointed under the
said Act. However, it must be noted that when the substance seized
contains ingredients which are also classified as narcotic drugs or
psychotropic substances, the provisions of the NDPS Act are clearly
attracted.
21. In the present case, the substances seized, namely, syrup
containing Codeine Phosphate and tablets containing Alprazolam,
are covered not only under the Drugs and Cosmetics Act, but also
under the Schedules to the NDPS Act, depending upon the
composition and quantity. Once the chemical analysis revealed that
the quantity of the narcotic component exceeded the permissible
limit, the case assumed the character of an NDPS offence.
22. As regards the competence of the local police to act under
the NDPS Act, there is no absolute bar that only the Narcotics
Control Bureau can act. Section 53 of the NDPS Act specifically
empowers certain officers of the police department, who are of or
above the rank as notified by the Government, to exercise powers
of search, seizure, and investigation under the Act. In the present
case, the seizure was carried out by a duly authorised police officer
in the presence of panch witnesses and a Drugs Inspector, and the
provisions of the NDPS Act were invoked only after confirmation
of the presence of narcotic substances in the contraband.
23. Moreover, the initial invocation of the Drugs and Cosmetics
Act does not nullify the action taken subsequently under the NDPS
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Act, if the material recovered is found to contain narcotic or
psychotropic substances. It is well-settled that if the facts justify
application of the NDPS Act, the police are within their powers to
proceed accordingly, irrespective of whether the action was
initially under another enactment.
24. Therefore, the contention that only the NCB has power to
conduct such seizure, and that the local police are barred from
acting under the NDPS Act, is misplaced and unsupported by law.
In the present case, there is no material to show that the police
officers were acting beyond their jurisdiction or without lawful
authority under the NDPS Act.
25. Accordingly, this Court is of the considered view that no
illegality or want of jurisdiction can be attributed to the action of
the police in seizing the contraband and invoking the provisions of
the NDPS Act, once it was confirmed that the seized substances fell
within the purview of the said Act.
26. Further, at this stage, there is nothing on record to show that
there was any procedural illegality or prejudice caused to the
applicant during seizure, sampling or forwarding the samples for
analysis. These aspects will be tested at the stage of trial. At the
stage of bail, the test under Section 37 of the NDPS Act is twofold:
(i) the Court must be satisfied that there are reasonable grounds
for believing that the accused is not guilty of the offence; and (ii)
the accused is not likely to commit any offence while on bail. The
burden to satisfy both conditions lies on the accused.
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27. In the present case, considering the nature and quantity of
the contraband, and in the absence of any material to demonstrate
that the applicant was merely a transporter unaware of the nature
of the goods, it cannot be said that the twin conditions of Section
37 are satisfied. Hence, the bar under Section 37 operates against
the grant of bail.
28. In view of the aforesaid discussion, and having regard to the
seriousness of the allegations, nature of the substance recovered,
and the statutory bar under Section 37 of the NDPS Act, this Court
is not inclined to exercise discretion in favour of the applicant.
29. Hence, the following order is passed:
(a) The Bail Application stands rejected.
(b) It is, however, clarified that the observations made
herein are confined to the consideration of the bail
application and shall not influence the trial Court while
deciding the matter on merits.
(c) The applicant is at liberty to renew his request for bail
if there is any substantial change in circumstances, or at an
appropriate stage during the trial.
(AMIT BORKAR, J.)
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