Bombay High Court
IMRAN JAHURUL KHANversusSTATE OF MAHARASHTRA
- Decided
- Disposal
- Allowed
- Bench
- R M JOSHI
Holding
The Court held that prima facie non‑compliance of Section 42 is a relevant factor and, in the present case, warranted the grant of bail.
Summary
The High Court considered the bail application of Imran Jahurul Kha, who was arrested for possession of 38.117 kg of ganja alleged to be for sale, an offence under Sections 8(c) and 20(c) of the NDPS Act. The prosecution argued that the quantity involved was commercial and that the case should proceed to trial. The defence contended that the investigating police failed to comply with the mandatory requirement of Section 42 of the NDPS Act, i.e., reducing the secret information to writing and communicating it to a superior officer, and relied on the Supreme Court’s decision in Sarija Banu and a prior Bombay High Court bail judgment. The Court examined the chargesheet and found prima facie that Section 42 had not been complied with, noting no written record of the information. Considering the lack of criminal history, the non‑compliance of Section 42, and the applicant’s custody since December 2024, the Court held that bail was appropriate and ordered its grant on a personal bond.
Issues considered
- Whether non‑compliance of Section 42 of the NDPS Act can be a ground to grant bail.
- Whether the commercial quantity of narcotics automatically precludes bail.
Legislation cited
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 20(C), 42, 8(C)
Subjects
- bail
- NDPS Act
- Section 42
- commercial quantity
- secret information
- non‑compliance
- high court
Judgment
10-BA-3004-2025
Navnath Waghmare (P.A)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 3004 OF 2025
Imran Jahurul Kha …Applicant
Versus
State of Maharashtra …Respondent
Mr. Khan Sherali Shakhibqul for the Applicant.
Ms. Rajeshree Newton APP for the Respondent-State
Mr. Nitin Bhosale, PSI, DCB CID Unit-4 Mumbai
CORAM: R. M. JOSHI, J.
DATED: 04th MARCH, 2026
PC:-
1. The Applicant seeks bail in connection with CR No. 81 of
2025 registered with DCB/CID Unit IV, Mumbai for the offence
punishable under section 8(C) r/w 20 (C) Narcotic Drugs and
psychotropic Substance act, 1985 (for short ‘NDPS ACT’)
2. It is the case of the prosecution that on 02.12.2024 Police
DCB/CID received information that the applicant is conscious
possession of huge quantity of ‘Ganja” which was meant for sale
to the people. On the basis of secret information, police along with
panch witnesses went Jacob circle, Sath Rasta, Mumbai. At that
time it was found that applicant accused was transferring ‘Ganja’
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from white coloured plastic gunny bags in his house. In the
presence of panch witnesses 38.117 kg. of Ganja worth
Rs.9,52,925/- and also cash was seized from the house of the
accused. He was arrested on 03.12.2024 and since then he is in
jail.
3. Learned counsel for the applicant submits that there is non-
compliance of Section 42 of the said Act since the person who
received the secret information have not reduced the same and
thereafter communicating the same to the Superior Officer. By
drawing attention of the Court paragraph 12 of the order passed
by the Trial Court rejecting the application, it is contended that the
finding recorded by the Trial Court with regard to the Kishor
Mahajan recorded the secret information received by him in police
station diary and then informed it to incharge P.I., is factually
incorrect. He submits that the provision of Section 42 is mandatory
in nature and non-compliance thereof could even be considered at
the stage of bail. To support this submission he placed reliance on
the order dated 13.06.2017 passed by this Court in Bail Appliation
No. 2108 of 2016, and reference is also made to the judgment of
the Apex Court in case of Sarija Banu (A) Janarthani Vs. State
through Inspector of Police {(2004) 12 SCC 266}.
4. Learned APP opposed the application essentially on the
ground that the quantity of contraband involved in this case, is
commercial quantity. It is her submission that the issue with regard
to the breach of Section 42(2) cannot be decided at this stage, and
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it is a matter to be considered at the time trial. She further drew
attention of the court to the statement recorded during the course
of investigation which according to her indicates that after the
receipt of the information from the same was communicated to the
senior officers and as such there is compliance of Section 42 of the
Act. It is also pointed out that there is another offence registered
against the applicant vide CR No. 47 of 2025 on 23.05.2025
5. The Hon’ble Supreme Court in the case of Sarija Banu
(supra) has considered as to whether violation of Section 42 of the
NDPS Act could be taken into account while deciding the bail
application. It is held therein that compliance of Section 42 is
mandatory and it is relevant fact to which attention of the court
can be drawn, while considering the bail application. This Court in
bail application No. 2108 of 2016 has also taken into consideration
the relevant provision of Section 42 and it is held that the non-
compliance of the said provision would entitle the accused to seek
bail.
6. Perusal of the chargesheet indicates that the secret
information was received by Police Hawaldar Kishor Mahajan.
Though it is so stated there is prima-facie no evidence on record to
indicate that the said information was reduced in writing and
thereafter, it was communicated to the superior officers. This Court
therefore finds prima-facie substance in the contention of the
counsel for the applicant with regard to the compliance of Section
42 of the said Act. In so far as the antecedents is concerned,
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admittedly the Applicant is in jail since 03.12.2024 and in such
circumstances there is no question of he going to someones office
and committing offence. On the face of it, the said allegation does
not deserve acceptance.
7. Thus, it can be said that there is no criminal history behind
the applicant and he is not likely to flee from justice. There is no
chance of conclusion of trial in short period of time. Since the case
is made out for non-compliance of Section 42 of the said Act, this
is a fit case for enlargement of applicant on bail.
8. Hence, following order.
ORDER
i) The application stands allowed.
ii) Applicant is enlarged on bail in connection CR. No. 81 of
2024 Applicant be enlarged on bail on furnishing PR Bond
of Rs. 30,000/- with one or two for the satisfaction of the
trial court.
iii) Applicant is directed to attain before the DCB/CID Unit-IV,
Police Station Mumbai, once in a month till conclusion of the
trial. He is further directed to cause appearance on each date
of hearing before the trial Court unless exempted by passing
specific order.
(R. M. JOSHI, J.)
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