JAIBUN MOHAMMED SHAIKHversusSTATE OF MAHARASHTRA

P.H. JAYANI                                              16 BA3695.2026.DOC


        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             CRIMINAL APPELLATE JURISDICTION
                BAIL APPLICATION NO. 3695 OF 2026

Jaibun Mohammed Shaikh                                    … Applicant
      V/S.
State of Maharashtra                                    … Respondent


Mr. Taraq Sayed a/w. Ms. Ashwini Acharii and Mr. Devashish
Dhanjode for the Applicant.
Mr. Vinod Chate, APP for the Respondent – State.
Mr. Mahesh Khankar, PSI, Bazarpeth Police Station, Kalyan,
present.


                            CORAM:       SHYAM C. CHANDAK, J.
                            DATED :      28th SEPTEMBER, 2026
P.C. :-

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

2.        The applicant seeks her release on bail in connection with
C.R.No.526/2025 registered with Bazarpeth Police Station, Thane
for the offence punishable under Sections 8(c), 21(b), 22(c) and 29
of the Narcotic Drugs and Psychotropic Substances Act, 1985
(“NDPS”) on the report dated 25.09.2025 lodged by Mr. Khushal
Tukaram Nerkar, Police Constable, Dombivali Police Station.

3.        The prosecution case is that, on 25.09.2025, at about 17:12
hours, while the informant and other police personnel with him
were patrolling in Bail Bazar area, Kalyan, accused Mohammed
Havaldar Shaikh (A1) and the applicant, Jaibun Mohammed
Sheikh (A2) were found present there. Their conduct appeared
suspicious, and they tried to run away on seeing the police.
Therefore, they were accosted, two panchas were called and both
the accused were served with the notice u/S. 50 of NDPS Act.

                                Page 1 of 5
P.H. JAYANI                                             16 BA3695.2026.DOC



During personal search of A1, a plastic bag was found in pocket of
his pant. It was found containing 111 grams of heroin. Similar
plastic bag was found in the purse carried by the applicant and it
was found containing 57 grams of MD. The said substance were
seized under a panchanama. Accordingly, present crime came to
be registered and the applicant was arrested. However, the other
accused wanted in the crime could not be arrested. On completion
of the investigation, charge-sheet came to be filed. The trial Court
refused to release the applicant on bail.

4.       Mr. Sayed, learned Counsel for the applicant submitted that
Section 50 (4) of the NDPS Act has been ignored in this case while
conducting the personal search of the applicant as well as the
purse in her possession because said search was conducted at the
the instance of a male police officer, but, in his presence and gaze.
A male panch and other male police official were also present
there at the time of the said search. Additionally, he pointed that
the contraband was weighed along with the plastic packet in which
it was kept. Consequently, it is possible that the actual contraband
was lesser than the commercial quantity, i.e., 50 grams.         He,
therefore, urged to grant bail.

5.       Opposing these submissions, Mr. Chate, the learned APP
submitted that there is nothing on record to doubt the search and
seizure action undertaken in this case at the spot by the police. He
submitted that although, the applicant was searched in the
presence and gaze of a male police officer and a male panch, on
that technical ground, it cannot be maintained that Section 50 (4)
of the NDPS Act is violated. He submitted that it all depends on
the size of the pouch in which the contraband was kept. Therefore,


                               Page 2 of 5
P.H. JAYANI                                              16 BA3695.2026.DOC



whether the contraband was less than the commercial quantity or
not, is a question of trial and at this stage, it cannot be denied that
the applicant was found in possession of the commercial quantity
of contraband. In this background, bail may be refused.

6.       I have considered these submission. A bare perusal of the
spot panchanama evinces that the personal search of the applicant
and her purse was conducted by a female police head constable
namely R.J. Ghuge in the presence and gaze of the male panch and
male police officer Mr. Dukale, Police Inspector. It is not the case
that the said search and seizure was conducted in seclusion.
Therefore, it was in violation of Section 50(4) of NDPS Act.

7.       This conclusion is supported by the judgment of the
Division Bench of this Court in Mrs. Veneela Tilak v. Shri
Shahasane, Assistant Collector of Customs reported in 1997 All
MR (Cri) 368 which is followed by the judgment of learned Single
Judge in Heena Bharat Shah vs. State of Maharashtra reported in
2017 SCC OnLine Bom 1396. In the subsequent judgment, in
paragraph 4, it is observed that :-

         “ 4. In the present case the applicant Heena Shah, a female
         was searched, that is her person was searched within the
         gaze of males. Prima-facie, it appears that the applicant
         Heena Shah was not searched in seclusion and in the
         absence of any male person. That there is a contravention
         of section 50(4) of NDPS Act, 1985 and the provisions in it
         spirit have been violated as has been laid down by the
         Division Bench of this Court in the case of Mrs. Veenela
         Tilak (supra). The provision envisages regard for the person
         and privacy of a female and the same is not honoured by the

                               Page 3 of 5
P.H. JAYANI                                                  16 BA3695.2026.DOC



         mere fact of the search being carried out by a female
         constable. Section 50(4) of NDPS Act additionally requires
         that the female accused be searched in seclusion and to the
         exclusion of males. It is, therefore, reasonable to believe
         that the applicant has not committed an offence punishable
         with   imprisonment     for    more   than   five     years   as
         contemplated under the provisions of NDPS Act, 1985. It
         further prima-facie appears that there is no reasonable
         belief that she is likely to commit an offence punishable
         under the NDPS Act if released on bail. ”

8.       The aforesaid decisions were considered by the learned
Single Judge of this Court in BA/260/2024. In addition, reference
was made of the decision of the Hon’ble Supreme Court in State of
Punjab vs. Surinder Rani alias Chhindi reported in (2000) 10 SCC
429, therein, it is laid down that requirement of Section 50(4) is
mandatory and cannot be diluted even on the ground that a female
was not available at the time of search.

9.       In the wake of above, there is no escape from a prima facie
conclusion that the search and seizure of the contraband from the
applicant is vitiated on the count that it was conducted in the
presence and gaze of a male police officer Mr. Dukale as well as a
male panch. This situation permits an inference by the Court that
the applicant may not be guilty of the aforesaid offences alleged
against her. It is stated that the applicant has no criminal
antecedents. As a result, the rigours of Section 37 of NDPS Act are
not attracted.

10.      In the backdrop, the applicant is entitled for bail. Hence,
Order :-

                                Page 4 of 5
                    P.H. JAYANI                                                16 BA3695.2026.DOC



                    (i)      The applicant - Jaibun Mohammed Shaikh be released on
                    bail in C.R.No.526/2025 registered with Bazarpeth Police Station,
                    Thane, on her executing a P.R. Bond in the sum of Rs.50,000/-
                    with one or two sureties in the like amount.

                    (ii)     The applicant shall mark her attendance at Bazarpeth Police
                    Station, Thane once in two months 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.

                    (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 her
                    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.

                    11.      Bail Application stands disposed of in aforesaid terms.


       Digitally
       signed by
       PREETI
                                                                  (SHYAM C. CHANDAK, J.)
PREETI HEERO
HEERO JAYANI
JAYANI Date:
       2026.09.30
       12:01:02
       +0530                                        Page 5 of 5