1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1403 OF 2007 Ravindra Pandurang Gavli & Ors. .. Applicants Versus State of Maharashtra .. Respondents Mr.M.S.Mohite for applicants Mr.S.R.Shinde, A.P.P. for State. CORAM : S.C.DHARMADHIKARI, J. DATE : 11th January 2008 P.C. . This criminal application was argued yesterday and was placed today at the instance of learned A.P.P. 2 2. The applicants are arrested in connection with an offence punishable under section 8, 20(b)(i)(ii), 22, 25 and 29 of N.D.P.S. Act and section 25(1)(a)(b) and 27 of the Arms Act. The incident is of 1994. Learned Judge has convicted the accused for offences punishable under the above provisions and directed them to suffer R.I. for three years and pay fine for the offences under N.D.P.S. Act and One year R.I. for offence under Arms Act. The accused who are convicted and punished are Accused Nos.1,4,5 and 6. 3. The trial commenced as early as in 1994 inasmuch as the Sessions Case is numbered as 186 of 1994. The judgement, conviction and sentence is dated 22nd November 2007. All through this period, the accused were on bail. 4. The contention of Mr.Mohite and Mr.Kotwal appearing for applicants is that the incident 3 which has been narrated in para 2 of the judgement shows that information was received by the Police Inspector Mr.Prakash Vengurlekar, who is no longer alive and was also not available for deposition before the Court below, that a truck loaded with Ganja is coming towards Satara. The person giving information did not disclose his full name and other details. Such information is allegedly entered in the Station Diary. Learned Judge has in the judgement itself observed that the information which was allegedly received was recorded in a letter by P.W.9 as per the instructions of the said Police Inspector. That letter (Exh.112) shows that before departure for the raid, the said police inspector intimated D.S.P. Satara about the information received by him on phone from one Shankar. The letter states that Mr.Vengurlekar had informed D.S.P. that entries at serial No.6 1.10 a.m. on 25th June 1995 has been taken in the station diary. The information is only that Ganja was being 4 transported. A copy of the station diary is not produced on record. Copy of the letter is exhibited. In such circumstances, relying upon the evidence of P.W.9 and contents of the letter, learned Judge observed that information received has been informed by the said Mr.Vengurlekar to his immediate superior. It is in these circumstances, that it is contended by the prosecution that section 42 of the N.D.P.S. Act has been complied with. 5. Learned Judge is aware of the mandate of section 42. He is further aware of the fact that the said provisions have been held to be mandatory. However, while referring to the decisions in the field, learned Judge has referred to the earlier view taken by this Court. The later judgements including that of the Constitution Bench of Supreme Court in the case of State of Punjab Vs. Baldev Sing (1999 (6) S.C.C. 172, have not been noticed by the learned 5 Judge. The Supreme Court has time and again observed that the provisions of section 42 are mandatory. In A.I.R. 2004 S.C. 4324 (State of West Bengal Vs. Babu Chakraborty) and 2004 (12) S.C.C. 266 (Sarija Banu @ Janarthani @ Janani & Anr. Vs. State, through Inspector of Police), a two Judge bench of the Supreme Court presided over by is Lordship Mr.Justice K.G.Balkrishnan, (as His Lordship then was) has observed that allegation as to violation of section 42 is a relevant fact to be taken into consideration while considering the bail application. In the latter decision of the Supreme Court, the fact situation was some what identical. The Supreme Court has observed that compliance with section 42 is mandatory while considering bail application. In the earlier decision reported in A.I.R. 2004 S.C. 4234 all the decisions in the field have been referred to and the Supreme Court observed that section 42(1) postulates that the empowered officer if has a prior information 6 given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building, he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to section 42(1), if such officer has to carry out search between sunset and sunrise, he must record the grounds of his belief. To this extent, the provisions are mandatory and contravention of the same would vitiate the trial. 6. The admitted factual position has been referred to by me only to highlight the point that not only the Supreme Court but this Court also consistently took a view that the provisions have to be complied with. 7 7. Learned A.P.P. would urge that the offences under Arms Act are also alleged and the conviction and sentence is also for these offences. Therefore, it is a case where the accused are convicted and sentenced under the N.D.P.S. Act as also Arms Act. However, learned A.P.P. could not deny that this will not be of any assistance inasmuch as the accused are not disentitled from applying for bail. 8. In the facts and circumstances peculiar to this case and when the incident is of June 1994 and the trial concluded after 13 years and since the applicants were on bail all through out so also they having not violated the terms and conditions on which they were so released, this is a fit case where accused deserve to be enlarged on bail. More so, when there is prima facie substance in the contention of the learned Advocate that provisions of section 42 and more 8 particularly the mandate thereof has not been followed in this case. 9. In the result, the Criminal application succeeds. Applicants - accused shall be enlarged on bail on the same terms but with additional condition that they shall report to Satara city police station once in fortnight till the appeal is heard and disposed of. However, the Applicants have to execute fresh bonds. All concerned to act on an authenticated copy of this order. (S.C.Dharmadhikari, J)