Bombay High Court
MOIN MOHD. ARIF NIRBAN @ NIRBAN MOIN ARIFversusSTATE OF MAHARASHTRA
- Decided
- Disposal
- Disposed Off
Holding
The court granted bail, holding that the procedural deficiencies under Section 50 did not preclude bail given the applicant’s extended pre‑trial detention and lack of risk of re‑offending.
Summary
The applicant, Moin Mohd. Arif Nirban, was arrested in January 2025 for allegedly possessing 150 grams of mephedrone, a commercial quantity under the NDPS Act. The police conducted a personal search after serving a notice under Section 50 of the NDPS Act, but the defence argued that the notice did not properly inform the applicant of his right to be searched before an independent gazetted officer or magistrate. The court examined the notice, found that the applicant’s right was communicated, and noted that while the waiver of the right was not recorded, the presence of a gazetted officer in the raiding party did not constitute an independent officer as required by precedent. Citing Supreme Court decisions in Ranjan Kumar Chadha and State of Rajasthan v. Parmanand, the court held that procedural lapses did not outweigh the applicant’s prolonged pre‑trial detention of over 1 year and 9 months. Consequently, the bail application was granted with a bond of Rs.50,000 and several conditions, without prejudice to the trial’s merits.
Issues considered
- Whether the provisions of Section 50 of the NDPS Act were complied with during the personal search of the accused.
- Whether the presence of a gazetted officer in the raiding party satisfies the requirement of an independent officer for the search.
- Whether the applicant is entitled to bail despite alleged procedural lapses and the nature of the contraband seized.
Legislation cited
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 22(c), 29, 37, 50, 8(c)
Subjects
- bail
- NDPS Act
- Section 50
- personal search
- procedural compliance
- pre‑trial detention
- mephedrone
Judgment
WAKLE
MANOJ MANOJ 907-BA-4372-2025.DOC
JANARDHAN
Digitally signed by
WAKLE MANOJ
JANARDHAN IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Date: 2026.08.24
18:56:49 +0530 CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO.4372 OF 2025
Moin Mohd. Arif Nirban @ Nirban Moin Arif …Applicant
V/s.
The State of Maharashtra …Respondent
Ms. Sana R. Khan a/w Mr. Jinay Jain, for the Applicant.
Mr. H. J. Dedhia, APP for the Respondent-State.
PSI – Deepak S. Dummalwad, Anti narcotics Cell, Thane City
present.
CORAM: SHYAM C. CHANDAK, J.
DATED : 21st 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 CR No.51 of 2025 registered with Chitalsar Police
Station, for the offence punishable under Section 8(c), 22(c) and
29 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(“NDPS Act”).
3. The prosecution case is that on 25 th January 2025, at about
19.00 hours, Informant, Mr. Desai, Police Constable, ANC, Crime
Branch, Thane received a secret information that, on 26 th January,
2025, at about 00.30 hours at Happy Valley Circle, Manpada,
Thane, the Applicant/Original Accused No.1 and Accused No.2 –
Muzammil Nagori would come on a motorcycle carrying 150
grams Mephedrone for sale. The police team headed by PSI –
Bhosale along with panchas went to the said spot and laid a trap.
When both the accused arrived there at 00.50 hours, they were
apprehended in the presence of the panchas. Notice under Section
50 of NDPS Act was served to both the accused and it was followed
Page 1 of 6
MANOJ 907-BA-4372-2025.DOC
by their personal search. Two plastic pouches containing 76.4
grams and 76.1 grams Mephedrone were found on the person of
the Applicant. It was seized. Accordingly, the aforesaid crime came
to be registered on the report of Mr. Desai and both the accused
were arrested. Investigation revealed complicity of Accused No.3,
therefor, he came to be arrested. On completion of the
investigation, police submitted the charge-sheet. The trial Court
declined to release the Applicant on bail.
4. Ms. Khan, learned Counsel for the Applicant submitted that
there is no proper compliance with Section 50 of the NDPS Act, as
before taking the personal search the Applicant and therefore, the
search and seizure of the contraband is vitiated. She submitted
that the Applicant is in jail for last 1 year and 9 months. Therefore,
she urged to release him on bail.
5. In reply, Mr. Dedhia, the learned APP submitted that the
Applicant was found in possession of commercial quantity of
Mephedrone. Before carrying out the personal search of the
Applicant he was apprised his right as required in Section 50 of
NDPS Act. He has not shown that he is not guilty of the alleged
offence. Therefore and, considering rigours of Section 37 of NDPS
Act, the Applicant is not entitled for bail.
6. I have considered these submissions. The main thrust of the
submissions of Ms. Khan is that before effecting the personal
search of the Applicant, he was not informed of his right of being
searched before a nearest Gazetted Officer or Magistrate nor his
response is properly recorded. To appreciate this claim, it is
necessary to consider the notice under Section 50 of the NDPS Act
served upon the Applicant. It reads :-
Page 2 of 6
MANOJ 907-BA-4372-2025.DOC
“(एन.डी.पी.एस. ॲ ट १९८५ की धाराए ५० के तहत )
हॅपी हॅली रोड,
मानपाडा, ठाणे (प)
#$नांक - २६-०१-२०२५
मोईन आ+रफ #न-ा.न वय-२९ व12,
रा.#ठ. 3म नं. ६०१, #मरा पंचर5न हौ.सोसा.
नयानगर, श9स म:;<$ <वळ #मरारोड (पुव.)
#व1य: एन.डी.पी.एस. १९८५ के धारा ५० तहत सुचना प@.
‘<-#क ऐसा #वBास #कए <ाने का कारण है की, आपके पास एम.डी.
MEPHEDRONE (एम.डी.) यह नशे के Dलए इ;तेमाल होनेवाला अंमली प$ाG. होने की,
पHी ख-र #मली है। यह अंमली प$ाG. आपके पास रखना एनडीपीएस कानुन १९८५ के
तहत अपराध है। इस प@Kारा आपको <ानकारी $ी <ाती है की, एनडीपीएस कानुन १९८५
की धारा ५० के तहत आपकी तलाशी न<$ीकी #कसी $ंडाLधकारी या रा<प@ीत अLधकारी
के सामने लेनेका आपका अLधकारी है।’
रा<प#@त अLधकारी इनके ह;ताMर एव मोहोर
(<ग$ीश गा#वत)
स.पो.#न. अमली प$ाG. #वरोधी पGक
गुNहे शाखा ठाणे शहर.
“आप मेरी तलाशी ले सकते है।” Panch No.1 Sign (Eng.)
Sign of accused (Eng.) Panch No.2 Sign (Eng.)”
7. Plain reading of said notice indicates that there is no
ambiguity in the notice and the right of the Applicant under
Section 50 of the NDPS Act was properly communicated to him.
However, so far as the reply of the Applicant is concerned, Ms.
Khan submitted that, as held and directed by the Hon’ble Supreme
Court in Criminal Appeal Nos. 2239-2240 of 2011, Ranjan Kumar
Chadha vs. The State Of Himachal Pradesh, in paragraph 64 (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
Page 3 of 6
MANOJ 907-BA-4372-2025.DOC
Officer or Magistrate and he may be searched by the empowered
officer.”
Considering the reply of the notice given by the Applicant in
the light of the said direction of the Apex Court, impliedly, it
appears that the Applicant had declined of being searched before a
Gazetted Officer or Magistrate and, thus consented to be searched
by the empowered officer, i.e., the Gazetted Officer Mr. Gavit, who
was present in the police team. However, the said decline/waiver
is not recorded in the notice nor in the panchanama.
It is a matter of record that, since beginning Mr. Gavit was
present in the raiding party. As such, he was not an independent
Gazetted Officer. In case of State of Rajasthan v. Parmanand,
reported in (2014) 5 SCC 345, it is enunciated that the idea behind
taking an accused to a nearest Magistrate or a nearest gazetted
officer, if he so requires, is to give him a chance of being searched
in the presence of an independent officer. In that case, acting on a
secret information, the raiding team headed by Superintendent
J.S. Negi had accosted the accused persons. PW-10 held the
personal search of the accused in the presence of J.S. Negi.
Therefore, it is held that J.S. Negi being a part of the raiding party,
he was not an independent Officer.
8. In the wake of above, whether in this case the provision of
Section 50 of NDPS Act has been properly complied with and
whether the Applicant was found in possession of contraband or
not, are the questions of trial.
Considering the facts and circumstances of the case, it
cannot be said that the Applicant is likely to commit any offence
while on bail. The Applicant is behind the bars for more than 1
Page 4 of 6
MANOJ 907-BA-4372-2025.DOC
year and there is no possibility of conclusion of trial in foreseeable
future.
9. As a result, I am inclined to allow the Application. Hence,
following Order:-
(i) Applicant – Moin Mohd. Arif Nirban @ Nirban Moin
Arif shall be released on bail in connection with an FIR
bearing CR No.51 of 2025 registered with Chitalsar Police
Station, on his furnishing 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 ANC,
Crime Branch, Thane on the 1st day of each calendar 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 by the said
Court, for the reasons to be recorded in writing.
(iv) The Applicant shall not tamper with the prosecution
evidence and shall not directly or indirectly influence upon
the prosecution witness to prevent them from deposing
against him.
(v) On being released from jail, the Applicant shall
furnish his contact number and residential address to the
Investigation Officer and shall keep him updated, in case
there is any change.
(vi) The Applicant shall not indulge in identical activities
for which he has been arraigned in this case.
Page 5 of 6
MANOJ 907-BA-4372-2025.DOC
(vii) Except for attendance at ANC, Crime Branch, Thane,
the Applicant shall not enter the jurisdiction of Thane
District for one year from the date of his release from jail.
(viii) 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 out come of the
trial and also not be taken as an expression of opinion on
the merits of the case.
10. Application stands disposed of in the aforesaid terms.
(SHYAM C. CHANDAK, J.)
Page 6 of 6
Checking your session…