1appln-4558-09 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL BAIL APPLICATION No. 4558 of 2009 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders. Court’s or Judge’s orders Mr A.P. Mundargi, Sr.Advocate i/by Sayaji Nangre,Advocate for the Applicant. Mr P.S.Hingorani, A.P.P.,for the State. CORAM:- A.R. JOSHI, J. DATE :- 7TH JUNE, 2010. P.C.:- 1. Heard learned Senior counsel for the applicant, in this regular bail application and also the learned A.P.P.,for some time. 2. Allegations against the applicant are that he was found in possession of one kilogram of Heroine, during the raid conducted on prior information when standing along with co-accused. Co-accused was also found in possession of one kilogram of Heroine in another bag. 3. Only point argued before this Court is - non-compliance of Section 50 of the N.D.P.S. Act 1985. For this purpose, attention of this Court is drawn to the portion from the spot panchnama as to the search 2appln-4558-09 and seizure which was conducted in presence of one Shivaji Yashwant Jamdade, Police Inspector from Oshivara Police Station who accompanied the searching party. In the same paragraph it is specifically mentioned that both the accused persons were informed about their right, envisaged by Section 50 of the N.D.P.S. Act as to their search to be taken in the presence of a Gazetted Officer or a Magistrate to which they declined. 4. If we have to accept the argument advanced on behalf of the applicant as to the search conducted in the presence of the Police Officer, a searching party member, it has also to be accepted prima facie that accused/applicant had declined for his search in presence of a Magistrate or a Gazetted Officer. If it be so, then it would be irrelevant at least at this stage to consider - whether the search was conducted by one raiding party member, the police officer, being a Gazetted Officer or not . 5. Another argument advanced on behalf of the applicant is that he was compelled while in police custody to talk to accused No.3 over the mobile phone of one police officer, and asked him to go to a particular place; and said accused No.3 was subsequently arrested. 6. It is submitted that this piece of evidence gathered by the investigating machinery is without any valid sanction contemplated under the Telegraph Act. Without going into details of this argument, suffice to say that at this prima facie stage even the material gathered by irregular means can also be taken care of. However, this aspect is 3appln-4558-09 open for the consideration during the trial and it cannot be considered now at the stage of granting bail, mainly, considering the prima facie involvement of the applicant having found in possession of one kilogram of Heroine. Said quantity is definitely a commercial quantity and there is bar for grant of bail under Section 37 of the N.D.P.S. Act. In this view of the matter, there is nothing in the present bail application and the same is accordingly disposed of by the following order. ORDER (a) Application for bail stands rejected. (b) Any observations made in this order shall not be construed as any finding or any expression of opinion on the merit of the case, at the time of trial. (A.R.JOSHI,J)