MANOJ 907-BA-4372-2025.DOC IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL BAIL APPLICATION NO.4372 OF 2025 Moin Mohd. Arif Nirban @ Nirban Moin Arif …Applicant V/s. The State of Maharashtra …Respondent Ms. Sana R. Khan a/w Mr. Jinay Jain, for the Applicant. Mr. H. J. Dedhia, APP for the Respondent-State. PSI – Deepak S. Dummalwad, Anti narcotics Cell, Thane City present. CORAM: SHYAM C. CHANDAK, J. DATED : 21st AUGUST, 2026 P.C. :- 1. Heard learned Counsel for the parties. Perused the record. 2. The Applicant seeks his release on bail in connection with an FIR bearing CR No.51 of 2025 registered with Chitalsar Police Station, for the offence punishable under Section 8(c), 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”). 3. The prosecution case is that on 25th January 2025, at about 19.00 hours, Informant, Mr. Desai, Police Constable, ANC, Crime Branch, Thane received a secret information that, on 26th January, 2025, at about 00.30 hours at Happy Valley Circle, Manpada, Thane, the Applicant/Original Accused No.1 and Accused No.2 – Muzammil Nagori would come on a motorcycle carrying 150 grams Mephedrone for sale. The police team headed by PSI – Bhosale along with panchas went to the said spot and laid a trap. When both the accused arrived there at 00.50 hours, they were apprehended in the presence of the panchas. Notice under Section 50 of NDPS Act was served to both the accused and it was followed WAKLE MANOJ JANARDHAN Digitally signed by WAKLE MANOJ JANARDHAN Date: 2026.08.24 18:56:49 +0530 MANOJ 907-BA-4372-2025.DOC by their personal search. Two plastic pouches containing 76.4 grams and 76.1 grams Mephedrone were found on the person of the Applicant. It was seized. Accordingly, the aforesaid crime came to be registered on the report of Mr. Desai and both the accused were arrested. Investigation revealed complicity of Accused No.3, therefor, he came to be arrested. On completion of the investigation, police submitted the charge-sheet. The trial Court declined to release the Applicant on bail. 4. Ms. Khan, learned Counsel for the Applicant submitted that there is no proper compliance with Section 50 of the NDPS Act, as before taking the personal search the Applicant and therefore, the search and seizure of the contraband is vitiated. She submitted that the Applicant is in jail for last 1 year and 9 months. Therefore, she urged to release him on bail. 5. In reply, Mr. Dedhia, the learned APP submitted that the Applicant was found in possession of commercial quantity of Mephedrone. Before carrying out the personal search of the Applicant he was apprised his right as required in Section 50 of NDPS Act. He has not shown that he is not guilty of the alleged offence. Therefore and, considering rigours of Section 37 of NDPS Act, the Applicant is not entitled for bail. 6. I have considered these submissions. The main thrust of the submissions of Ms. Khan is that before effecting the personal search of the Applicant, he was not informed of his right of being searched before a nearest Gazetted Officer or Magistrate nor his response is properly recorded. To appreciate this claim, it is necessary to consider the notice under Section 50 of the NDPS Act served upon the Applicant. It reads :- MANOJ 907-BA-4372-2025.DOC “(एन.डी.पी.एस. ॲट १९८५ की धाराए ५० के तहत ) हॅपी हॅली रोड, मानपाडा, ठाणे (प) #$नांक - २६-०१-२०२५ मोईन आ+रफ #न-ा.न वय-२९ व12, रा.#ठ. 3म नं. ६०१, #मरा पंचर5न हौ.सोसा. नयानगर, श9स म:;<$ <वळ #मरारोड (पुव.) #व1य: एन.डी.पी.एस. १९८५ के धारा ५० तहत सुचना प@. ‘<-#क ऐसा #वBास #कए <ाने का कारण है की, आपके पास एम.डी. MEPHEDRONE (एम.डी.) यह नशे के Dलए इ;तेमाल होनेवाला अंमली प$ाG. होने की, पHी ख-र #मली है। यह अंमली प$ाG. आपके पास रखना एनडीपीएस कानुन १९८५ के तहत अपराध है। इस प@Kारा आपको <ानकारी $ी <ाती है की, एनडीपीएस कानुन १९८५ की धारा ५० के तहत आपकी तलाशी न<$ीकी #कसी $ंडाLधकारी या रा<प@ीत अLधकारी के सामने लेनेका आपका अLधकारी है।’ रा<प#@त अLधकारी इनके ह;ताMर एव मोहोर (<ग$ीश गा#वत) स.पो.#न. अमली प$ाG. #वरोधी पGक गुNहे शाखा ठाणे शहर. “आप मेरी तलाशी ले सकते है।” Panch No.1 Sign (Eng.) Sign of accused (Eng.) Panch No.2 Sign (Eng.)” 7. Plain reading of said notice indicates that there is no ambiguity in the notice and the right of the Applicant under Section 50 of the NDPS Act was properly communicated to him. However, so far as the reply of the Applicant is concerned, Ms. Khan submitted that, as held and directed by the Hon’ble Supreme Court in Criminal Appeal Nos. 2239-2240 of 2011, Ranjan Kumar Chadha vs. The State Of Himachal Pradesh, in paragraph 64 (ii), “Where, the person to be searched declines to exercise this right, the police officer shall be free to proceed with the search. However, if the suspect declines to exercise his right of being searched before a Gazetted Officer or Magistrate, the empowered officer should take it in writing from the suspect that he would not like to exercise his right of being searched before a Gazetted MANOJ 907-BA-4372-2025.DOC Officer or Magistrate and he may be searched by the empowered officer.” Considering the reply of the notice given by the Applicant in the light of the said direction of the Apex Court, impliedly, it appears that the Applicant had declined of being searched before a Gazetted Officer or Magistrate and, thus consented to be searched by the empowered officer, i.e., the Gazetted Officer Mr. Gavit, who was present in the police team. However, the said decline/waiver is not recorded in the notice nor in the panchanama. It is a matter of record that, since beginning Mr. Gavit was present in the raiding party. As such, he was not an independent Gazetted Officer. In case of State of Rajasthan v. Parmanand, reported in (2014) 5 SCC 345, it is enunciated that the idea behind taking an accused to a nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. In that case, acting on a secret information, the raiding team headed by Superintendent J.S. Negi had accosted the accused persons. PW-10 held the personal search of the accused in the presence of J.S. Negi. Therefore, it is held that J.S. Negi being a part of the raiding party, he was not an independent Officer. 8. In the wake of above, whether in this case the provision of Section 50 of NDPS Act has been properly complied with and whether the Applicant was found in possession of contraband or not, are the questions of trial. Considering the facts and circumstances of the case, it cannot be said that the Applicant is likely to commit any offence while on bail. The Applicant is behind the bars for more than 1 MANOJ 907-BA-4372-2025.DOC year and there is no possibility of conclusion of trial in foreseeable future. 9. As a result, I am inclined to allow the Application. Hence, following Order:- (i) Applicant – Moin Mohd. Arif Nirban @ Nirban Moin Arif shall be released on bail in connection with an FIR bearing CR No.51 of 2025 registered with Chitalsar Police Station, on his furnishing P.R. Bond in the sum of Rs.50,000/- with one or two sureties in the like amount. (ii) The Applicant shall mark his attendance at ANC, Crime Branch, Thane on the 1st day of each calendar month between 12:00 noon to 4:00 p.m., till the conclusion of the trial. (iii) The Applicant shall regularly attend the proceedings before the jurisdictional Court unless exempted by the said Court, for the reasons to be recorded in writing. (iv) The Applicant shall not tamper with the prosecution evidence and shall not directly or indirectly influence upon the prosecution witness to prevent them from deposing against him. (v) On being released from jail, the Applicant shall furnish his contact number and residential address to the Investigation Officer and shall keep him updated, in case there is any change. (vi) The Applicant shall not indulge in identical activities for which he has been arraigned in this case. Page 5 of 6 MANOJ 907-BA-4372-2025.DOC (vii) Except for attendance at ANC, Crime Branch, Thane, the Applicant shall not enter the jurisdiction of Thane District for one year from the date of his release from jail. (viii) It is clarified that any observation made in the present order are for the purpose of deciding the present Bail Application and should not influence the out come of the trial and also not be taken as an expression of opinion on the merits of the case. 10. Application stands disposed of in the aforesaid terms. (SHYAM C. CHANDAK, J.)