Bombay High Court

SHAMSHER AHMED KHURSHID AHMED, CHAUDHARIversusSTATE OF MAHARASHTRA

Decided: 25 August 2026
Disposal: Disposed Off

Holding

The personal search was illegal because the constable was not authorized, and the applicant is entitled to bail.

Summary

The applicant, Shamsher Ahmed Khurshid Ahmed Choudhary, was arrested for possession of 5.48 grams of MD under Sections 8(c) and 22 of the NDPS Act, 1985. The trial court denied bail citing his criminal antecedents. The applicant argued that the personal search leading to seizure was illegal because it was conducted by a constable, not an authorized police Naik, on the instruction of a superior. The respondent contended that the search was valid and the antecedents barred bail. The High Court held that the constable was not empowered to conduct the search, rendering it illegal, and consequently granted bail with conditions. The bail application was disposed of in the applicant's favour.

Issues considered

Whether the personal search conducted by a police constable, under the direction of a superior, is lawful under the NDPS Act.
Whether the illegality of the search affects the applicant's entitlement to bail despite his criminal antecedents.

Legislation cited

Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 — s. 22, 42, 8(c)

Subjects

bail
NDPS Act
illegal search
personal search
criminal antecedents
possession of narcotics

Judgment

MEERA JADHAV                                             914 BA2551.2026.DOC


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           CRIMINAL APPELLATE JURISDICTION

           CRIMINAL BAIL APPLICATION NO. 2551 OF 2026
Shamsher Ahmed Khurshid Ahmed, Choudhary                  …. Applicant

       V/s.
State Of Maharashtra                                    …. Respondent


Ms. Ashwini Achari a/w Mr. Anish Pereira i/b Mr. Taraq Sayed
for the Applicant.
Ms. Kranti T. Hiwrale, APP for Respondent - State.


                            CORAM:        SHYAM C. CHANDAK, J.
                            DATED :       25th 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 Crime No.21 of 2026, registered with Chunabhatti
Police Station for the offences punishable under Sections 8(c) read
with 22 of the Narcotic Drugs and Psychotropic Substances, Act,
1985, on a report filed by Mr.Bharat Vadte, Police Constable.

3.        The prosecution case is that on 11 th January 2026, at about
00.10 hours, near Buntar Bhawan Wall, Kurla, the Applicant was
found in possession of 5.48 gms of MD. Therefore, the said offence
was registered. Investigation led to arrest of Accused No.2. On
completion of investigation police submitted the charge-sheet. The
trial Court declined to release the applicant on bail mainly for the
reason of antecedents.

4.        Ms. Achari, learned Counsel for the applicant submitted that
the personal search of the applicant, which led to alleged seizure of

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MEERA JADHAV                                                       914 BA2551.2026.DOC



5.48 gms MD from his possession, is vitiated. Because, the
personal search was conducted by a constable at the instance of
his superior. Therefore, notwithstanding, there are criminal
antecedents, the applicant may be released on bail. To support this
submission, she has cited the following cases.
     1. No. BPA 1081/1180/81-A(II)/PRO-1
     2. Henna Bharat Shah vs. State of Maharashtra
        Bail Application no. 1051 of 2016
     3. Aarif Akram Shaikh vs. State of Maharashtra
        Bail Application No. 3158 of 2021.

     4. Haji Mohd. Abdul Kadar Bhumedia vs. State of Maharashtra
        Bail Application no. 378 of 2022

     5. Miraj Shaikh @ Sabul Biswas vs. State of Maharashtra
        Bail Application no. 2477 of 2023
     6. Kamrjahan @Gudiya Tajuddim Shaikh vs. State of Maharshtra
        Bail Application no. 2294 of 2024

     7. Manish Kumar Boricha vs. State of Maharashtra
        Bail Application no. 1163 of 2022
     8. Akil Nisar Matke vs. State of Maharashtra
        Bail Application no. 2366 of 2025


5.      Ms. Hiwrale, learned APP, on the other hand, submits that
although the applicant was search by the Police Niak, it was at the
instructions of the superior. Therefore, there is a prima facie case
against the applicant. The applicant has five criminal antecedents
under the IPC and, therefore, he is not entitled for bail.

6.      I have considered these submissions. The record clearly
show that when the applicant was apprehended, his personal
search was conducted by the informant Mr. Vadte, Police
Constable, on the say of his superior Mr. Thubal, Police Inspector.

        In the cited case of Aarif Akram Shaikh (supra), the personal
search of the accused was carried out by the Police Naik.
Considering this fact in juxtaposed the provisions of Section 42,


                                     Page 2 of 4
MEERA JADHAV                                            914 BA2551.2026.DOC



this Court held that, the Police Naik was not authorized to carry
out the search. Since the search was prima facie carried out by one
of the Police Naik who was not authorized, it renders the search
illegal. Consequently, the Court held that prima facie, there were
reasonable grounds for believing that the accused was not guilty of
the alleged offence. To reach this conclusion, this Court
considered the earlier decision in Haji Mohd. Abdul Kadar
Bhumedia (supra).

7.      In view thereof, the applicant is entitled for bail. Hence,
following Order :-

(i)     The applicant – Shamsher Ahmed Khurshid Ahmed
Choudhary be released on bail in connection with FIR bearing
No.21 of 2026 registered with Chunabhatti Police Station, for the
offences punishable under Sections 8(c) read with 22 of the NDPS
Act, on his executing 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 Chunabhatti
Police Station, on 1st and 16th day of each calender 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.

(iv)    The applicant shall not indulge in identical activities for
which he has been arraigned in this case.

(v)     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.


                              Page 3 of 4
                      MEERA JADHAV                                          914 BA2551.2026.DOC



                      (vi)   The applicant shall not tamper with the prosecution
                      evidence and shall not directly or indirectly influence upon the
                      prosecution witnesses to prevent them from deposing against him.

                      (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.

                      8.     Bail Application stand disposed of in aforesaid terms.


                                                     (SHYAM C. CHANDAK, J.)
  PREETI
  HEERO
  JAYANI
Digitally signed by
PREETI HEERO
JAYANI
Date: 2026.08.27
19:38:59 +0530




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