(1) CRI.APP. 4007.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4007 OF 2010 Shaikh Kadir Shaikh Umer, Age : 23 years, Occu.: Labour, R/o. Partur, Tq. Partur, Dist. Jalna .. Applicant VERSUS The State of Maharashtra and anr. .. Respondents ... Mr. Darshan D. Kulkarni, Advocate for the Applicant Mr. B.J. Sonawane, APP for the respondent-State ... CORAM : V.R. KINGAONKAR, J. DATED : 22ND NOVEMBER, 2010 ORAL ORDER:- 1. The Application is for bail. The applicant is arrested in connection with crime no. 6016 of 2010 registered at Sadar Bazar Police Station, Jalna. 2. According to the prosecution, on 12.4.2010, the Police received secret information to the effect that some persons and women were transporting narcotic substance called ganja in a State transport bus MH-20-226 which was being plied on Bhusawal- Nanded road via Jalna. It was learnt that six (2) CRI.APP. 4007.2010 persons were likely to alight at the S.T. stand of Jalna. The Police, therefore, reached S.T. stand in presence of panchas and a photographer. No sooner, the S.T. bus arrived at Jalna S.T. stand at 11.45 am, the Police party members searched the S.T. bus. At seat no. 6,7 and 8 they found three passengers including the applicant who were having three cloth bags kept at place of their legs below the seats and the red coloured handbags. All the three passengers were inhabitants of Partur and were got unboarded alongwith the baggage. During the search of three cloth bags, in all 26 kg. of ganja was found. 3. Heard learned Advocate for the applicant and learned A.P.P. for the State. Perused the investigation papers. Admittedly, the chargesheet has been filed against the applicant and another co- accused. It appears that one of the passenger by name Amin Pathan is juvenile and as such his case is split up and referred to the Juvenile Court/Board. 4. The learned Advocate for the applicant would submit that due to non-compliance of section 42 of the Narcotic Drugs and Psychotropic Substances Act, (3) CRI.APP. 4007.2010 1985 (For short "The N.D.P.S. Act), the raid is legally defective and as such applicant deserves liberty. 5. The question whether due compliance of section 42 was made or not, is the question of fact which could be determined after the trial. Moreover, it appears that the Police received secret information at about 11.00 am. whereas the arrival of the S.T. bus was scheduled within the short period and, therefore, there may not be time gap available to strictly apply with the relevant provisions. In such a case, another question is whether the compliance is directory or mandatory and is likely to vitiate the entire proceedings? The question of compliance of section 50 of the N.D.P.S. Act, also is not of any significance in the present case, because the recovery is effected from the baggage and not from the applicant and another co-accused. It is well settled that in case of recovery from baggage of a passenger, the compliance of section 50 of the N.D.P.S. Act is not a necessary requirement. It appears that the applicant was in joint possession of (4) CRI.APP. 4007.2010 commercial quantity of the narcotic substance i.e. ganja which falls under section 2(iii)(b) of the N.D.P.S. Act. 6. Under the circumstances, I am of the opinion that the legal embargo enumerated under section 37 of the N.D.P.S. Act is attracted and the applicant is not entitled to seek bail. The Application is therefore dismissed. Sd/- [V. R. KINGAONKAR, J.] arp