1 Cri-A-143-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPLICATION NO. 143 OF 2011 Shri Suresh Somraju Ali ... Applicant Vs. The State of Maharashtra ... Respondent Mr. S.V.Kotwal, i/b. Mr. S.S.Bhandary,Advocate, for the applicant. Smt. P.P.Shinde, APP, for the respondent - State. Mr. Arun Ghadge, PSI,Khalapur Police Station present in Court. CORAM: J.H.BHATIA,J. DATE : 22nd February, 2011. P.C. 1. The applicant seeks to be released on bail in Crime No.15/2010 registered at Khalapur Police Station, District Raigad, for the offences under Sections 8(c), 20 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "NDPS Act"). 2. The prosecution case, in brief, is that Inspector Raut of Khalapur Police Station got information from his informant that truck No. AP-05/TU/6450 was proceeding from the side of Pune towards Rashi Hotel at Khalapur Phata and the said truck had huge stock of Ganja. After getting that information, Inspector Raut and his team took the position. After some time, the said truck came there. 2 Cri-A-143-11.sxw At the same time, a car also came there. One bundle from the truck was shifted by its cleaner, who is the present applicant, to the dickey of the car. When he was shifting the second bundle, police party pounced and caught the truck driver, the cleaner and the driver of the car. Two bundles containing Ganja were seized from the car. 113 bundles and 4 gunny bags containing Ganja were seized from the truck. Average weight of each bundle was between 5 to 7 kgs. and total weight of Ganja was found to be 780 kgs. The property was seized,the samples were taken, and sealed under a panchnama and thereafter FIR was lodged by Head Constable S.D.Kiswe and the said offence was registered. 3. The learned Counsel for the applicant prayed for bail mainly on two grounds. Firstly, driver of the car has been granted bail and secondly, the provisions of Section 42 of NDPS Act have not been complied with. He also contended that the applicant was not in conscious possession because he was only a cleaner on the truck. The learned APP opposed the application. 4. I am not convinced with the contention that the applicant was not in conscious possession only because he was cleaner or conductor of the truck, while another accused was driver. There were in all 115 bundles and 4 gunny bags containing Ganja which were loaded in the truck. Therefore, it cannot be 3 Cri-A-143-11.sxw believed that the present applicant was not aware about the contents of those articles. Taking into consideration the quantity found in the truck, the applicant cannot be compared with the driver of the car, who had just received two bundles out of such huge quantity and taking into consideration the size of the dickey, it is impossible to believe that the car driver was to receive all the bundles and bags containing Ganja which were in the truck. 5. Section 42 of NDPS Act requires that when any officer empowered in this behalf, has reason to believe from personal knowledge or information given by any person and taken down in writing that narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under the Act has been committed he may enter into and search any such building,conveyance or place and seize such drug, substance or other material. Sub-section (2) requires that where an officer takes down any information in writing under sub-section (1), he shall within seventy-two hours send a copy thereof to his immediate official superior. In the present case, though the information was allegedly received by Police Inspector Raut, the FIR was lodged by Head Constable Kiswe. As per the FIR, Inspector Raut had given information to his Senior Police Inspector Shri Padalkar, who in turn gave information to Sub- Divisional Police Officer and the information was also given to the Superintendent 4 Cri-A-143-11.sxw of Police, Diistrict Raigad. It is settled position of law that compliance of Section 42 is mandatory and non-compliance thereof may be fatal to the prosecution. The learned Counsel for the applicant also contended that non-compliance of the provisions of Section 42 is a relevant fact to be taken into account while considering the bail application as held by the Supreme Court in Sarija Banu & Anr. vs. State (2004) 12 SCC 266. When the information is received, the police officer is expected to note down and keep a record of that information and then also to communicate that information to his superior officer. Naturally, record of transmitting information can be available only if the information is given in writing. 6. Learned APP, after taking instructions from PSI Arun Ghadge from Khalapur Police Station, who is present in the Court, makes a statement that except the entry in Station Diary about oral communication to his superiors, there is no document to show that the information was in fact communicated to superior officers and thus, prima facie there is no document to support the contention in the FIR that the information was communicated to superior officer and the provisions of Section 42 were complied with. As prima facie this mandatory provision does not appear to have been complied with bail cannot be refused to the accused, who was a cleaner. 5 Cri-A-143-11.sxw 7. Therefore, the applicant be released on his executing P.R. of Rs. 50,000/- with one or two solvent sureties with condition that he shall not tamper with the prosecution evidence and shall furnish his permanent address to the police and shall also attend the police station within whose jurisdiction he resides on every first and third Sunday of a month till the end of the trial. (J.H.BHATIA,J.)