1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3003/2011 Satpalsingh @ Raja s/o Jeetsingh Pujari and another. Applicants V E R S U S The State of Maharashtra & another. Respondent *** Mr. Praveen Mandlik h/f Mr. Amol Gandhi, Senior Advocate for applicants. Mr. B.J. Sonwane, A.P.P. for respondents. .... CORAM : SHRIHARI P. DAVARE,J. DATE : 18th AUGUST, 2011. PER COURT : 1. Heard learned respective counsel for the parties. 2. This is an application preferred by the applicants, seeking bail, in connection with Crime No.02/2011, registered 2 at Vajirabad Police Station, District Nanded, for the offence punishable under section 15, 22 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (herein after referred to as “N.D.P.S.” for short). 3. It appears that offence has been registered on the basis of complaint lodged by Sandeep Subhash Bharati on 19.3.2011. It is alleged that, on receipt of the secret information and after observing necessary formalities, raid was conducted by the Investigating Agency, at the shop, belonging to applicant No.1 and huge quantity of dry Poppy straw powder, utensil, containing wet Poppy straw powder and Nitrosun tablets were recovered therefrom and same were seized under the seizure panchnama in presence of panchas and same were sealed and labelled with the signatures of panchas and applicant nos. 1 and 2 were taken into custody. It is also alleged that in all 107 dry kgs Poppy straw powder and 5 kg wet poppy straw powder, totaling 112 kg said powder was recovered from the shop belonging to applicant 3 no.1. It is further alleged that video shooting of the said search and seizure and arrest of the applicant nos. 1 and 2 was done by Investigating Agency. It is further alleged that, the aforesaid quantity of contraband was found in the possession of the applicants, more particularly in the shop belonging to applicant No.1, which was meant for sell, illegally, in contravention of the provisions of Section 15, 22 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 4. Learned Senior Counsel Mr. Mandlik canvassed that shop from where, alleged above referred recovery of contraband was done, does not belong to the applicant No.1 and applicant No.1 is not the owner thereof. Hence, liability thereof cannot be fastened with the applicant No.1. It is also canvassed by learned Senior Counsel for applicant that Investigating agency has not complied with the mandatory provisions of 42 (1), 42 (2) as well as did not comply with the other important provisions i.e. Section 52, 55 and 57 of the N.D.P.S., Act. It is further submitted that there are no 4 previous criminal antecedents of the applicants and the applicants have been implicated in the present case falsely, and therefore, urged that applicants be enlarged on bail. 5. Mr. Sonwane, learned A.P.P. countered the said argument and opposed present application, vehemently and submitted that huge commercial quantity of contraband was recovered from the shop belonging to the applicant no.1, at the time of seizure and same was seized under the seizure panchnama, after following necessary formalities and due compliances under the provisions of N.D.P.S, Act. Learned A.P.P. also submitted that statement of Ishwarsingh Amarsingh Munsi which was recorded during the course of investigation, discloses that shop in question i.e. shop No.3, is in possession of the applicant No.1. Moreover, electricity receipt issued by M.S.E.D.C.L dated 23.10.2010 discloses that the electricity meter No. 550010762651 in the said shop is in the name of applicant No.1 herein. Moreover, it is also pointed out by learned A.P.P. that both the applicants were 5 present at the time of search of the said shop and seizure of the contrabands therefrom at the relevant time. Learned APP also canvassed that Dr. Vitthal Limbaji Paratwagh i.e. Gazetted Officer was present at the time of search and seizure of the contrabands from the said shop and the aforesaid search and seizure was conducted in his presence. It is further submitted that Poppy straw is at Serial No.110 in the schedule of N.D.P.S. Act and commercial quantity described therein is 50 Kgs whereas quantity of recovered Poppy straw from the shop of applicant No.1 is 112 Kgs. i.e. more than commercial quantity. It is further submitted that C.A. report discloses that the contraband seized from the shop of the applicant No.1 contains ‘Morphine’ and accordingly, learned A.P.P. urged that present application bears no substance and same be rejected. 6. Considering rival submissions, advanced by the learned counsel for the parties, and also on consideration of investigation papers and considering record, more particularly 6 spot panchnama disclosing electricity meter and the receipt dated 23.10.2010, reflecting that said electricity meter in the shop in question is in the name of the applicant No.1, herein. Moreover applicant nos.1 and 2 were present at the time of search and seizure of Poppy straw in the said shop i.e. more than commercial quantity and hence, there is no substance in the argument canvassed by learned Senior counsel that shop in question did not belong to the applicants. Moreover, it is also significant to note that, statement of Ishwarsingh Munsi also strengthens the case of the prosecution, which discloses that shop in question i.e. shop No.3 is in possession of the applicant No.1, from where above referred contraband was recovered at the time of raid and same were seized at the time of seizure panchnama, as mentioned herein above. Apparently, there cannot be any dispute that the applicant No. 1 was in possession of the shop in question at the relevant time. 7 7. Moreover, it also appears from the investigation papers that investigation agency has apparently complied with mandatory provisions of Section 42 (1) and 42 (2) of the N.D.P.S.Act. Besides Dr. Vitthal Paratwagh, whose statement has been recorded by the investigating agency discloses that, he was Gazetted Officer who was present at the time of above referred search and seizure and aforesaid contraband in huge quantity was recovered in his presence from the shop in question. Moreover, C.A. report also discloses that contraband contains Morphine. Moreover, commercial quantity at Serial No.110 in the schedule of N.D.P.S. Act pertaining to Poppy straw is 50 Kgs and pertinently, contraband recovered from the shop belonging to the applicant No.1 was more than commercial quantity i.e. 112 kg. 8. Besides, it is reported that case has been posted for recording of evidence before learned trial court, which would be commenced shortly. 8 9. In the circumstances, having comprehensive view of the matter, apparently, there is no substance in the submissions advanced by learned senior counsel for the applicants and also I am not inclined to accept the submissions advanced by learned Senior Counsel for the applicants and also I am not satisfied that there are reasonable ground that the applicants are not guilty of offence, levelled against the applicants under N.D.P.S.Act and therefore, present application deserves to be rejected. 10. In the result, present application, which is sans merit, stands dismissed. These observations are the primafacie observations, may not be used in any other matter, being decided on merits. 11. Parties to act on the authenticated copy, of the order, duly signed by the Court Sheristedar. [ SHRIHARI P. DAVARE] JUDGE aaa/3003.11 *.*.*