IMRAN BASHEER SHAIKHversusTHE STATE OF MAHARASHTRA

P.H. JAYANI                                              907 BA1107.2026.DOC


        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             CRIMINAL APPELLATE JURISDICTION
                BAIL APPLICATION NO. 1107 OF 2026

Imran Basheer Shaikh                                      … Applicant
      V/S.
The State of Maharashtra                                … Respondent


Adv. Munira Palanpurwala a/w. Adv. Deepa Amati and
Adv. Sumaiya Khan for the Applicant.
Mr. Tanveer Khan (through VC) for the Respondent – State.


                            CORAM:       SHYAM C. CHANDAK, J.
                            DATED :      7th OCTOBER, 2026
P.C. :-

1.        Heard learned Counsel for the parties. Perused the record.

2.        The applicant seeks his release on bail in connection with
C.R.No.15/2025 registered with Anti-Narcotic Cell, Bandra Unit,
Mumbai for the offence punishable under Sections 8(c) with 22(c)
of the Narcotic Drugs and Psychotropic Substances Act, 1985
(“NDPS”) on the report dated 16.02.2025 lodged by Mr. Tanaji
Khare, Police Constable.
3.        The prosecution case is that, on 15.02.2025 between 22:10
hours to 23:55 hours, when the police team of ANC, Bandra Unit
including the informant – Mr. Tanaji Khare, Police Constable were
patrolling in their jurisdiction, they found the applicant present
near T.B. Hospital, BMC Colony, opposite the gate of ‘F’ building.
The conduct of the applicant was suspicious. Therefore, he was
accosted and two panchas were called to take his personal search.
Further, notice under Section 50 of the NDPS Act was also served
upon the applicant. The applicant received that notice and
responded he understood his right, police may take his search.

                                Page 1 of 5
P.H. JAYANI                                            907 BA1107.2026.DOC



4.       Thereafter, personal search of the applicant was conducted
which yielded in recovery of 106 grams of mephedrone from his
possession. It was seized. Accordingly, panchanama was recorded.
It was followed by lodging of the report by Mr. Khare, registration
of the crime and arrest of the applicant. On completion of the
investigation, police submitted the charge-sheet. The trial Court
declined to release the applicant on bail.

5.       Ms. Palanpurwala, the learned Counsel for the applicant
submitted that the notice served upon the applicant is not in
accordance with Section 50 (1) of the NDPS Act because, thereby,
the applicant was informed that he had right of being search
before the nearest Judicial Magistrate or Gazetted Officer.
Whereas, in the panchnama it is stated that he was informed as to
whether he requires to be searched before the nearest Magistrate
or Gazetted Officer. Meaning, the word “Judicial” is missing in the
panchanama. The option of “Judicial Magistrate” is not
permitted/provided in Section 50 (1). Additionally, she submitted
that the waiver of the right of being searched before the nearest
Magistrate or Gazetted Officer is not recorded in writing.
Therefore, there is violation of Section 50 (1). And, on this count
alone, the applicant is entitled for bail.

         To support these submission, Ms. Palanpurwala has relied
upon the decision of this Court in Aman Asif Shaikh v. State of
Maharashtra in BA/4209/2023 (BHC), therein, the decision in
Ashwinkumar Sarvansingh Chouhan vs. State of Maharashtra
reported in 2001 (4) MhLJ 157 is followed the accused was
released on bail. Therein it is held that the expression “Magistrate”
used in Section 50 NDPS Act is an “Executive Magistrate”


                               Page 2 of 5
P.H. JAYANI                                            907 BA1107.2026.DOC



6.       Mr. Khan, the learned APP appearing submitted that there
is proper compliance of Section 50 of the NDPS Act. There is
nothing of record to doubt the search and seizure of the
contraband substance from the applicant. This is a case of
commercial quantity. However, the applicant has not pointed that
he is not guilty of this offence. To support these submission, Mr.
Khan has relied upon the decision in Gulam Mohamad Gulam
Ahmad v. State of Maharashtra reported in 2004 ALL MR (Cri)
368. Therein choice was given to the accused between a Gazetted
Officer and a Judicial Magistrate. However, the appellant/accused
did not opt for either. Therefore, and relying upon the decision in
Munna Mohammad Hasan Ansari v. State of Maharashtra,
reported in Cril Appeal No.1383 of 1999 (Order dated 03.05.2001)
SC, this Court held that there was substantial compliance of
section 50 of NDPS Act and dismissed the appeal. He submitted
that, in the case in hand also, the applicant had not exercise such
choice. Therefore, no fault can be found with the said notice.
Therefore, the applicant is not entitled for bail.


7.       I have considered these submissions. As held in the case of
Ranjan Kumar Chadha v. State of H.P., reported in 2023 SCC
OnLine SC 1262, in paragraph 66 (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 Officer or Magistrate and he may be
searched by the empowered officer.”


                               Page 3 of 5
P.H. JAYANI                                             907 BA1107.2026.DOC



         In the case in hand, the notice of Section 50 bears the
signature of the applicant, but, it does not contain his waiver of the
right of being searched before the nearest Magistrate or Gazetted
Officer. Even though the panchanama bears the signature of the
applicant, it is towards an acknowledgment about receipt of its
copy. Therefore, impliedly, it appears that since the applicant had
declined his right of being searched before a Gazetted Officer or
Magistrate, in the panchanama, the police officer recorded that the
police may take the personal search of the applicant. However, the
said decline is not clearly recorded as enunciated in the case of
Ranjan Kumar Chadha (Supra). As evident from the record, since
start of the patrolling duty, the Gazetted Officer Mr. Keram was
present in the police party who had given the notice of Section 50
(1) and even took the personal search of the applicant.

         Therefore, I am of the opinion that, Section 50 (1) of NDPS
Act was not properly complied in the case and it violated the right
of the applicant stated therein which render the recovery of the
illicit article suspect .


8.       In the backdrop, the applicant is entitled for bail. Hence,
following Order :-
         (i)    The applicant - Imran Basheer Shaikh be released on
         bail in C.R.No.15/2025 registered with Anti-Narcotic Cell,
         Bandra Unit, Mumbai for the offence punishable under
         Sections 8(c) with 22(c) of the NDPS Act, on his executing a
         P.R. Bond in the sum of Rs.50,000/- with one or two
         sureties in the like amount.

         (ii)   As voluntarily undertaken by the applicant, during the
         bail period, the applicant will not reside/enter within the

                                Page 4 of 5
                    P.H. JAYANI                                                  907 BA1107.2026.DOC



                             jurisdiction of Mumbai Police Commissionerate and he shall
                             reside within the jurisdiction of Thane District and mark his
                             attendance at Anti-Narcotic Cell, Thane City on 1 st day of a
                             month between 11:00 a.m. to 2:00 p.m., till 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 indulge in identical activities
                             for which she has been arraigned in this case.
                             (v)     The applicant shall not tamper with the prosecution
                             evidence and shall not directly or indirectly influence the
                             prosecution witnesses to prevent them from deposing
                             against her.

                             (vi)    On being released from jail, the applicant shall
                             furnish his contact number and residential address to the
                             Investigating Officer and shall keep him updated in case
                             there is any change.

                             (vii) 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 outcome of the
                             trial and also not be taken as an expression of opinion on
                             the merits of the case.
                    9.       Bail Application stands disposed of in aforesaid terms.



                                                                     (SHYAM C. CHANDAK, J.)
       Digitally
       signed by
       PREETI
PREETI HEERO
HEERO JAYANI
JAYANI Date:
       2026.10.09
       20:35:58
       +0530

                                                       Page 5 of 5