- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.361 OF 2009 APPLICATION NO.361 OF 2009 APPLICATION NO.361 OF 2009 IN IN IN CRIMINAL CRIMINAL CRIMINAL APPEAL 273 OF 2009 APPEAL 273 OF 2009 APPEAL 273 OF 2009 Imiyaz Abdul Sayyad and others ...Applicants vs. The State of Maharashtra ...Respondent Mr.M.S.Mohite for the applicants Ms A.T.Javeri A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : APRIL 4,2009 : APRIL 4,2009 : APRIL 4,2009 P.C.: P.C.: P.C.: 1. This is an application for bail in an appeal against an order of conviction preferred by the accused. The accused have been convicted for the offence punishable under section 8(c) r/w 20 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the said Act). The applicants have been sentenced to suffer R.I. for 5 years and to pay fine of Rs.10,000/- each. It is an admitted position that the applicants were in custody from 11th November 2005 to 29th November 2005 and thereafter, they were enlarged on bail and they continued to be on bail during the pendency of the trial. The findings of the trial court as reflected from the impugned Judgment is that the first accused was found in possession of Ganja weighing 2.550 kg. and 2nd and 3rd accused were found in possession of Ganja weighing 2.050 kg. As per the notification issued under the said Act, a small quantity is shown as 1000 gms and commercial quantity - 2 - is shown as 20 kgs. It is not in dispute that the provision of section 37 of the said Act has no application considering the nature of the offence alleged against the applicant. 2. The submission of the learned counsel for the applicant is that admittedly there is no compliance with the requirement of sub section 2 of section of section 42 of the said Act in as much as there is no evidence to show that P.W. 4 Mr.Pandhare who had received the prior information had reduced the same in writing and had forwarded a copy thereof to his immediate superior officer. His submission is that as far as accused no.1 is concerned, it cannot be said that he was in exclusive possession of house no.661 from which the contraband was allegedly recovered. He submitted that the constructive possession of the accused no.1 is not established. He submitted that the information received by P.W.4 which was allegedly reduced into writing did not refer to the fact that the accused 2 and 3 had stored Ganja in house no.635. The information was confined to House no.661 and after the said house was raided, on the information allegedly given by the accused 1, the raiding party raided the house no.635. His submission is that the information given by the accused 1 regarding the contraband in the house of accused 2 and 3 has not been reduced into writing and there is no compliance with the mandatory provisions of section 42 of the said Act. The learned counsel pointed out that the finding of the learned - 3 - Trial Judge that the compliance of section 42 (2) of the said Act is not necessary as the Officer concerned who received the information was a Gazetted Officer is completely contrary to the decision of the Apex Court in case of State of West Bengal Vs. Babu Chakraborthy [(2004) 1 SCC 201]. 3. The learned A.P.P placed reliance on the decision of the Apex Court in case of M.Prabhulal Vs. Assistant Director, Directorate of Revenue Intelligence [(2003) 8 SCC page 449] and submitted that the aforesaid finding of the learned trial Judge regarding non compliance with section 42 is consistent with the said decision of the Apex Court. She has placed reliance with the decision of this court in case of Hanmanlu s/o Vithal Yarkondawar vs. State of Maharashtra [2006 All M.R. (Cri) 3001]. 4. I have carefully considered the submissions. Primafacie, it appears to me that the view taken by the learned Trial Judge regarding non compliance with sub section 2 of section 42 of the said Act appears to be in conformity with the decision of the Apex Court in case of M.Prabhulal. Primafacie, the reliance placed by the learned counsel for the applicant on the decision in case of State of West Bengal and others (supra) will not help him as the issue decided by the Apex Court in case of M.Prabhulal (supra) was not specifically canvassed by the Apex Court in the said case. - 4 - 5. My attention was invited to the evidence of P.W.4 Vishwas Pandhare who allegedly received the information on 18th November 2005. He has stated in his deposition that he reduced the information in writing and he informed the superior Officer telephonically. In the light of the law laid down by the Apex Court in case of M.Prabhulal (supra), it is not necessary at this stage to go into the question whether the information in writing was communicated to his superior officer in as much as P.W.4 was admittedly a gazetted officer. It is pertinent to note that though the information was received on 18th November 2005 and the houses concerned were raided immediately , the statement of P.W.4 was recorded on 5th October 2006 i.e. after more than eleven months after the receipt of information. On this aspect, it will be necessary to refer to the evidence of P.W.6 Shivaji who recorded the statement of P.W. 4 Pandhare on 5th October 2006. In response to a question in the cross examination, in paragraph 3 he stated that Mr.Pandhare had not stated that the confidential information which was received by him was reduced into writing. 6. Apart from this, as mentioned earlier, admittedly the constraints of section 37 will not apply to this case. The applicants were on bail throughout the trial. Endorsement made on the certified copy of the Judgment shows that the fine - 5 - amount has already been deposited. The sentence is of a limited duration of 5 years. This appeal is not likely to be heard before the remaining period of sentence is over considering the pendency of very old appeals in this court. The applicants deserve to be enlarged bail subject to compliance with stringent conditions. 7. Hence, I pass the following order. i) The applicants 1)Imtiyaj Abdul Sayyad, 2)Jahangir Nijam Sayyad and 3)Javed Salim Sayyad shall be enlarged on bail in the sum of Rs.15,000/- with one or two sureties in the like amount. ii) The bail is granted subject to condition that the applicants will report to senior Inspector of Police , Satara City Police Station on every 1st and 3rd Saturday of every calendar month till the disposal of the appeal. JUDGE JUDGE JUDGE