Cri. BA No.1178/2022
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in NDPS RA No.530/2022
MHCC020065582022
Presented on
Registered on
Decided on
Duration
: 19-05-2022
: 19-05-2022
: 22-09-2022
: 04 months, 03 days
IN THE SPECIAL COURT FOR NARCOTIC DRUG AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
CRIMINAL BAIL APPLICATION NO.1178 OF 2022
IN
N.D.P.S. REMAND APPLICATION NO.530 OF 2022
Zalwango Moureen @Anita
Aged : 24 years,
R/at: Room No.205, Chawl Bldg., Near
Orion School, Nalasopara (East), Palghar.

)
)
)
) .. Applicant/Accused
V/s.
The State of Maharashtra,
)
( At the instance of DCB-CID Unit-V,
)
Mumbai vide C.R. No.14/2022 )
)
(Vakola police station vide Special LAC/C.R )
No.31/2022)
) .. Respondent/Prosecution
Appearance :
Ld. Adv. Vimal Jha, for the applicant/accused.
Ld. APP Mr. P.J. Tarange, for the respondent/prosecution.
CORAM : H.H. THE ADDL.SESSIONS JUDGE
SHRI V.G. RAGHUWANSHI (C.R.43)
DATE : 22/09/2022
Cri. BA No.1178/2022
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in NDPS RA No.530/2022
ORAL ORDER
This is an application for releasing applicant/accused
Zalwango Moureen @Anita on bail.
2.

Applicant/accused submits that, she is citizen of Uganda.

She was arrested on 28.04.2022 in Special LAC No.14/2022 by DCBCID Unit-V, Kurla, Mumbai for offence punishable under section 8(c)
r/w section 22(c) of NDPS Act, 1985.

Presently she is in judicial
custody.
3.

It is alleged by prosecution that, Police Naik Patil of DCB
Kurla (West) received information that, one African lady Zalwango
Moureen @Anita, aged about 24 years, height approximately 5 feet,
medium built, wearing black burka would come to Shivnagar, Kalina,
Santacruz (East), Mumbai in between 04.00 to 05.00 pm on
27.04.2022.

Accordingly, crime branch laid trap and apprehended
applicant/accused resulting in seizure of 230 gram Mephedrone (MD)
(commercial quantity) from her.

Investigating agencies completing
other formalities. Presently she is in judicial custody.
4.

Applicant/accused claims bail on following grounds:
(a)
Allegations are false and not supported by any evidence.

(b)
Allegedly seized contraband were not tested by using Field
test kit.

(c)
Prosecution has no evidence about contrabands except
applicant’s statement.

(d)
Applicant is mother of two small kids. Her children live
with her.

Cri. BA No.1178/2022
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in NDPS RA No.530/2022
(e)
She is HIV positive having lot of health issues.

(f)
Applicant is not concerned with allegedly seized drugs.

(g)
There is no compliance of section 42 and 50 of the NDPS
Act.
She prayed for releasing her on bail.

5.

Prosecution resisted this application by filing its say. I have
heard both sides.
6.

It was contention of Ld. Counsel of applicant/accused that,
search can be taken by a female officer of and above rank of Head
Constable. In this case search was taken by female officer in presence
of Police Inspector. He drew my attention towards Notification of Home
Department dated 14.11.1995 which says that, government empowers
for the purposes of section 42 sub-section (i), all police officers of and
above the rank of Head Constable in the State of Maharashtra. He
submitted that, in this case search was taken by Police Naik. Therefore,
there is clear violation of section 42 of the NDPS Act and
applicant/accused is entitled to be released on bail. He also submitted
that, there is nothing on record to show that, how the Investigating
Officer came to know that contraband was Mephedrone (MD).

He
submitted that, applicant/accused is HIV positive and she having two
kids. He relied upon following citations.

(i)
The order of the Hon’ble Bombay High Court
in Smt. Najma Abdul Shaikh Vs. The State of
Maharashtra, Criminal Bail Application
No.1311/2012 dated 23.10.2012.

(ii)
The order of the Hon’ble Apex Court in Sarija
Cri. BA No.1178/2022
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in NDPS RA No.530/2022
Banu (A) Janarthani Vs. The State, dated
26.02.2004. 2004(3) CTC 215, (2004) 12 SCC
266.
(iii) The order of the Hon’ble Apex Court in Boota
Singh & Others Vs. State of Haryana, Criminal
Appeal No.421/2021 dated 16.04.2021.
(iv) The order of the Hon’ble Bombay High Court
in Haji Mohd. Abdul Kadar Bhumedia Vs. The
State of Maharashtra, Bail Application
No.378/2022 dated 23.08.2022. In support of
his contention.
7.

On the other hand, Ld. Public Prosecutor submitted that, as
per FIR search was done by Police Inspector with the help of lady police
staff.

There was no personal search of accused, only her bag was
searched. He drew my attention towards section 50 of the NDPS Act
and submitted that, as per said section 50 of NDPS Act female should be
searched by another female only. There is no provision that bag of a
female should also be searched by a female only. He submitted that in
this
case
230
gram
Mephedrone
(MD)
was
seized
from
applicant/accused. It is commercial quantity and therefore, rigours of
section 37 of the NDPS Act shall be applicable in this case. Under
section 37 of the NDPS Act, applicant/accused can be released on bail
only she satisfied both conditions enumerated therein. He relied upon
Union of India through NCB, Lucknow Vs. Mohd. Nawaz Khan ,
Criminal Appeal No.1043/2021, judgment dated 22.09.2021 . He
submitted that, contentions of section 42 of NDPS Act cannot be looked
into at the stage of bail application he can be seen only during the
course of trial (para number 29 of said aforesaid judgment). In this
case search is done by Police Inspector he also submitted that,
Cri. BA No.1178/2022
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in NDPS RA No.530/2022
applicant/accused is a foreigner. There is no information about visa and
passport. She may be member of international gang. No address proof
is given by applicant/accused. He prayed for rejecting her application.
8.

I have given thoughtful consideration to submissions of
both sides. In order to see whether there was compliance of section 50
and section 42 of NDPS Act, it is necessary to see averments in FIR. It is
alleged in FIR that, Police Inspector Yerekar explained said African lady
(applicant/accused) her legal rights about search and seizure.

The
Police Inspector Yerekar gave accused a letter in English language
signed by Police Inspector Yerekar.

Contents of said letter are also
mentioned in FIR they are “As per section 50 of NDPS Act, 1985, you
have right to give your personal search either in the presence of nearest
Magistrate or a Gazetted Officer.

If you demand so, we will make
arrangement to that effect”. It is further mentioned in report that
accused accepted that letter and acknowledged receipt of said letter on
another copy. Accused orally told Police Inspector Yerekar that it was
not necessary. Thereafter, she wrote on the letter that, she was aware of
her rights and police can take her personal search and she signed below
it.
9.

This clearly shows that, Police Inspector Yerekar had
complied with section 50 of NDPS Act. It is further mentioned in FIR
that, Police Inspector Yerekar offered accused to take search of police
team and both panch witnesses. But accused refused to do so. It is
mentioned in FIR that before starting search, Police Inspector Yerekar
questioned accused in presence of panch witnesses. Accused told her
name thereafter, PI Yerekar specifically asked accused what was there in
Cri. BA No.1178/2022
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in NDPS RA No.530/2022
her purse and she told that, she kept Mephedrone (MD) in her purse.
Thereafter, Police Inspector Yerekar took search of purse of accused with
help of lady police in presence of panch witnesses and found a plastic
bag containing white powder.
10.

Thus there was no personal search of accused only her
purse was searched. Section 50(4) of NDPS Act says that, search of a
female should be taken by a female. He does not say that search of
baggage of female should also be searched by a female only. It is clear
that, PI Yerekar came to know that there was Mephedrone (MD) in
purse of accused immediately after he asked her name.

Therefore,
there was no question of touching person of accused and taking search
of her body. Purse can be searched by any person and for searching a
purse it is not necessary to touch body of accused.

There is no
averments in the report that, person of accused was also searched.
Therefore, prima facie there is no material on record showing that,
there was any infringement of section 42 of NDPS Act in this case.
Therefore, citations relied upon by Counsel of applicant/accused do not
help accused because they pertain to consequences of infringement of
section 50 and 42 of NDPS Act. Every case has to be judge on basis of
its peculiar facts.

Principles laid down by Hon’ble High Court and
Hon’ble Apex Court in the matters relied upon by Ld. Counsel of
applicant/accused are not applicable to this case.

In this case
commercial quantity of Mephedrone (MD) was seized from purse of
applicant/accused. Therefore, rigours of section 37 of the NDPS Act
would come into play in this case. Applicant/accused is not Indian
national. Prosecution contends that, there is no information about visa
and passport of applicant/accused.

Therefore, there is grave doubt
Cri. BA No.1178/2022
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in NDPS RA No.530/2022
about legality of her stay in India. There is nothing on record to show
permanent address of the applicant/accused. In such circumstances, this
is not a fit case to exercise discretion in favour of applicant/accused.
Therefore, I pass following order.
ORDER
1. NDPS Bail Application No.1178/2022 in NDPS RA No.530/2022 in
Special LAC/C.R.No.14/2022 (DCB-CID Unit-V) (Special LAC/C.R.
No.31/2022 Vokola police station), is rejected.
2. Application stands disposed of accordingly.
(Pronounced in open Court)
Digitally signed
by VIJAY
GOVINDSINGH
VIJAY
GOVINDSINGH RAGHUWANSHI
RAGHUWANSHI Date:
2022.09.29
13:33:23 +0530
Date : 22/09/2022.

Dictated on
Typed on
Signed on
: 22/09/2022
: 23/09/2022
: 28/09/2022
(V.G. Raghuwanshi)
N.D.P.S Special Judge
City Civil & Sessions Court,
Gr. Bombay (CR.43)
Cri. BA No.1178/2022
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in NDPS RA No.530/2022
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE
29.09.2022
TIME
01.32 p.m.

NAME OF STENOGRAPHER
Sanjay Baliram Kaskar
(Stenographer Grade-I)
Name of the Judge
H.H.J. SHRI. V.G. RAGHUWANSHI
(C.R.No.43) NDPS Spl. Judge
Date of Pronouncement of
Judgment/Order.

22/09/2022
Judgment/order signed by P.O on
28/09/2022
Judgment/order uploaded on
29/09/2022