1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.126 OF 2010 WITH CRIMINAL APPLICATION NO.134 OF 2010 Sudhakar @ Chotu S/o.Nilkanth Sawant, Age-33 years, Occu-Business, R/o.Sheetal Colony, Plot No.2. Sakri Road, Dhule APPLICANT VERSUS The State of Maharashtra RESPONDENT Mr.C.R.Deshpande, learned counsel for applicant. Mr.N.R.Shaikh, learned APP for respondent State. (CORAM : A.V.POTDAR, J.) DATE : 24/02/2010 PER COURT : 1. Cri.Appl.No.126/2010 is moved by the applicant for his release in connection with CR No.22/2009 registered in Dhule Taluka Police Station, in which after completion of investigation, charge sheet is filed. 2. Cri.Appl.134/2010 is filed by the same applicant for his release on regular bail in connection with CR No.23/2009, registered in same police station, for the offences under The NDPS Act. In this 2 offence also, after completion of investigation, charge sheet is filed. 3. Both these applications require to be disposed of by way of common order as the applicant is same and the search and seizure took place in connection with these two offences, when the applicant was in custody in connection with CR No.68/2009, registered in Dhule City Police Station. 4. Considering the submissions across the bar, it appears that according to the prosecution, when the present applicant was in custody of Dhule City Police Station in connection with CR No. 68/2009, an information is received that at certain place, taken on rental basis, some ganja is stored, which the associates of applicant are going to dispose of. In view of this information, the applicant was brought to Bhakti Mandir road, which premises was found in locked condition and was opened with a key found in possession of the present applicant, and during the search of that premises, total 47.140 kg.ganja was recovered. While this search was in progress, further information is received that ganja is stored in a room in the hotel taken on rental basis to run the business therein by the applicant. The raiding party after completing the formalities at Morane village, left for that spot and during the search of that room in Kasturi Hotel, total 201 kg. Ganja was recovered. On the basis of this search, CR No.22/2009 and 23/2009 were registered against the applicant wherein he is in custody since the date of his arrest on 11/07/2009. 3 5. During the course of submissions, it is urged across the bar that the applicant was admittedly in custody of Dhule City Police Station in connection with CR No.68/2009 and he was brought to Morane villagea. According to counsel for applicant, if the applicant accused is in custody in another offence, wherein at the time of his arrest, he was searched and all the material found on his person was removed and taken in charge, then from where the key came in his possession with which the lock at the premises of village Morane was opened, from where 47.140 kg. ganja was recovered. It is his next submission that it is settled position of law that if any search to be carried out after sunset but before the sunrise, all this search require to be carried out under the valid search warrant issued by the competent officer u/s. 41 of The N.D.P.S.Act. In the present case, these 2 alleged searches were not carried out under the requisite procedure, hence if the search is carried out without following due procedure of law, it is violation of the mandatory provisions of The N.D.P.S.Act. As per the catena of judgments of Apex Court, if any search is carried out in violation of the mandatory provisions of The N.D.P.S.Act, then the applicants are entitled for bail. 6. Learned APP opposed the bail applications. 7. After hearing at the initial stage, as at that time the papers of investigation in CR No.68/2009 were not before this Court to find out the truth, whether any key was found in possession of applicant at the time of his arrest in connection with CR No.68/2009, papers of 4 investigation in that crime were called for. Today those papers are produced before the Court. On perusal of the papers of investigation in CR No.68/2009. Judicial note is taken that under the search panchnama of the person of the applicant, there is no reference of any key found in his possession nor any key which was in his possession was taken in charge under the Search Panchnama in CR No.68/2009. 8. In this premise, the contention about the search panchnama in CR No.22/2009, registered in Dhule Taluka Police Station that when the applicant was brought who was arrested in CR No.68/2009., the lock to the premises at Morane village was opened with the key which was found in possession of the applicant, falsified the case of prosecution. The second search on which basis CR No.23/2009 is in continuation with the earlier search. The court require to consider the fact that if the police officer can make incorrect statement about the opening of the lock with a key found in possession of the applicant, there is no guaranty that he may make the honest investigation in continuation of the same search. Apart from it, the fact is clear from perusal of papers of investigation in both CR No. 22/2009 as well as 23/2009, registered in Dhule Taluka Police Station that both these searches are carried out without valid search warrant and no reasons are recorded as required u/s. 42(3) of The N.D.P.S.Act, as per the recent amendment that the Officer can take the search after sunset and before sunrise even in absence of valid search warrant, but for the reasons to be recorded in writing about 5 the urgency to carry out the said search. In absence of these two technicalities, it appears that these searches carried out without valid search warrant and if it is so, the applicant is entitled for his release on bail even though huge quantity of contrabands were recovered from the places under the search in both these offences. Hence order. O R D E R 1. Both the applications are allowed. 2. Applicant in both these applications, be released on furnishing solvent surety in the sum of Rs.25,000/-, in each crime, and on executing PR bond in the like amount. 3. After released on bail, applicant not to leave the local jurisdiction of Dhule Taluka Police Station without previous permission in writing from the Investigation Officer concerned, and if the trial is committed to the Special Court, then not to leave the local jurisdiction without previous permission in writing from the Special Court concerned. 4. Both the applications stand disposed of accordingly. (A.V.POTDAR, J.) khs/FEB 2010/cri.appl.126-10