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2019 DIGILAW 379 (BOM)

Siraj Shaikh Nasir Munshi v. State Of Maharashtra

2019-02-07

PRAKASH D.NAIK

body2019
JUDGMENT Prakash D. Naik, J. - The applicant is seeking bail in C.R. No. II-116 of 2017 registered with Mumbra, Police Station for alleged offences punishable under Section 8 (c) read with Rule 22 and 29 of the NDPS Act. 2. The brief facts of the prosecution case are as follows :- (a) On 14/11/2017, the Complainant A. S. Thakur, API Bhosale and others were called in the chamber of Sr. PI Godse. API Walzade, PC Chabukswar and informant were present. They were informed that PC Chabukswar had received an information that on that day i.e. 14/11/2017 at around 17.20 hours two persons aged between 35 to 40 years would be coming in white colour Hyundai Verna Car bearing registration no. MH 06 AW 4041 in front of Kalsekar Hospital near Mumbra to sell 50-60 grams of Mephedrone in Mumbra city. (b) Sr. PI Godse directed Thane Amaldar to make entry in the Station diary and letter dated 14.11.2017 vide Inward No. 2084/2017 for seeking permission to conduct raid was forwarded to ACP, Crime Branch, Thane City through PC Chabukswar. (c) After receiving the permission to conduct the raid, Sr. PI Godse instructed API Walzade and others to initiate action. API Walzade instructed Shri Bhosale to make arrangement for Panchas. Other directions relating to raid, were also given. (d) The raiding party members went to the spot with panchas for raid. The vehicle mentioned in the information was intercepted at about 17.40 hours. Two persons alighted from car. They were identified as Mubashir Hamza Matwankar (accused no. 1) and Mohammad Shayan Abdul Sakur Khan (accused no. 2) (e) The accused were appraised of their rights under Section 50 of the NDPS Act. On search of Accused no. 1, one white colour plastic pouch containing white crystal was found. On weighing the same was found to be 55 gms. (f) Similarly on search of Accused No. 2, one white colour plastic pouch containing white crystals was found. The same was found to be 20 gms. (g) The officers prepared two samples of 2 grams each from quantity recovered from the possession of the accused. The samples alongwith the remaining bulk quantity was sealed and packed. The samples and the bulk from the respective accused were marked as A-1, A-2, A and B-1, B-2, B. The panchnama of the above event was completed by API Walzade. (g) The officers prepared two samples of 2 grams each from quantity recovered from the possession of the accused. The samples alongwith the remaining bulk quantity was sealed and packed. The samples and the bulk from the respective accused were marked as A-1, A-2, A and B-1, B-2, B. The panchnama of the above event was completed by API Walzade. (h) The Accused No. 1 and 2 were placed under arrest and F.I.R. was registered with Mumbra Police Station. (i) During the course of investigation, the involvement of the applicant was revealed by the Accused No. 1. The said accused had disclosed that the Mephedrone was purchased by him through his associate Siraj Shaikh Nasir Munshi (applicant) and he visits Kausa Mumbra area for the purpose of selling Mephedrone by his Honda City car at around 12.00 a.m. to 2.00 hours. Memorandum Panchnama was drawn on 17.11.2017. The raiding party members went to the spot. They noticed Honda City car and the applicant was apprehended. He was appraised right under Section 50 of the NDPS Act. He was found in possession of 60 grams of Mephedrone. (j) The officers prepared two samples of 2 grams each from quantity recovered from the Applicant. The samples along with the remaining bulk quantity was sealed and packed. The samples and the bulk from the respective accused were marked as C-1, C2, C. (k) During the course of investigation the involvement of Accused No. 4 was revealed. He was arrested from his house, however nothing incriminating was recovered at his residence. (l) He was arrested on 9th December, 2017. During his interrogation, it was revealed that Accused No. 5 was involved in the transaction and hence he was arrested on 17th December, 2017. However, nothing incriminating was recovered from Accused No. 5. (m) The samples were sent to FSL, Kalina for analysis. (n) The statement of witnesses were recorded and on completing investigation charge-sheet was filed. The case is numbered as NDPS Special Case No. 58 of 2018. 3. The applicant preferred an application for Bail before the Additional Sessions Judge, Thane. The said application was rejected by an order dated 20th October, 2018. 4. Mr. Ayaz Khan, Learned Advocate for the applicant submitted that there is non compliance of Section 50 of the NDPS Act. The case is numbered as NDPS Special Case No. 58 of 2018. 3. The applicant preferred an application for Bail before the Additional Sessions Judge, Thane. The said application was rejected by an order dated 20th October, 2018. 4. Mr. Ayaz Khan, Learned Advocate for the applicant submitted that there is non compliance of Section 50 of the NDPS Act. It is submitted that the applicant was suspected to be in possession of contravention in violation of the provision of the NDPS Act and hence it was imperative for the investigating machinery to apprise the applicant of his right contemplated under Section 50 of the NDPS Act. It is submitted that the applicant ought to have been informed that he has a right to be searched before the nearest Gazetted officer or the Magistrate and that he chooses so he would be searched in the presence of such officers. Learned Counsel pointed out relevant documents from the charge sheet and submitted that there is no compliance of the said provision as envisaged under the Act. My attention was drawn to the contents of F.I.R. lodged by Police Naik Thakur on 14.11.2017, arrest Panchnama of the applicant dated 17.11.2017 and the notice purported to issued for the compliance of Section 50 of the NDPS Act. The complaint refers to arrest of Accused Nos. 1 and 2 and appraisal of the right to be searched under Section 50 of the NDPS Act. The arrest Panchnama of the applicant refers to the disclosure made by Accused No. 1 about involvement of the Applicant which led to his arrest and recovery of 60 grams of Mephedrone powder. Mr. Khan submitted that in the arrest panchnama it is stated that in accordance with Section 50 of the NDPS Act, if he demands his search would be carried out before the nearest Magistrate or Gazetted officer, and if he demands, he would be taken to the nearest Magistrate or the Gazetted officer for the purpose of search. The Panchnama also mentions that the written notice was also given to the applicant appraising of his right under Section 50 and the same was read over and to him and that the applicant has declined to have his search before such officers. The Panchnama also mentions that the written notice was also given to the applicant appraising of his right under Section 50 and the same was read over and to him and that the applicant has declined to have his search before such officers. It is submitted that what is required to be informed to the applicant is that he has right to be searched before the Magistrate or the Gazetted officer and not that if he demands his search would be conducted before such officers. He submitted that the appraisal as alleged by the prosecution is contrary to Section 50 of the NDPS Act. Mr. Khan has also pointed out the written notice issued to the applicant. He submitted that even the said written communication does not satisfy the requirement of Section 50 of the Act. In the said notice it has stated that the search would be conducted before the nearest Magistrate or the Gazetted officer in case he makes such a demand. If he demands, he would be produced before the Magistrate or the Gazetted officer. It is further submitted that the appraisal was misleading. The response of applicant appearing on the said notice would indicate that the applicant had consented for conducting search in the absence of Gazetted officer. There is no reference to nearest magistrate. In any case defective appraisal would not be cured on account of reply of applicant. He submitted that the Apex Court in several decisions have held that the right under Section 50 of the NDPS Act has to be apprised to the accused in proper perspectives. The compliance of the provision is mandatory. He submitted that for non compliance of the said provision this Court has granted bail to accused in several cases. 5. Learned Advocate relied upon the decision of the Constitution Bench of the Supreme Court in the case of Vijaysinh Chandubha Jadeja V/s State of Gujarat , (2011) 1 SCC 609 , State of Rajasthan V/s Parmanand and Another , (2014) 2 SCC(Cri) 563 , Gurnam Singh @ Gagan V/s State of Punjab (order passed by the Apex Court dated 18th September 2015, granting bail.) Reliance is also placed on the orders passed by this Court in Bail Application 1145 of 2015 and Bail Application No. 2105 of 2015, where in Bail was granted to the accused for non compliance of Section 50 of the NDPS Act. 6. 6. Mr. Khan further submitted that the Pancha used for conducting the search was habitual and acted as Panch earlier. He is the stock witness. It is submitted that the Panch Riyaz Sartaj Khan was one of the panch in the arrest and seizure panchnama of the applicant/ accused. He has repeatedly acted as pancha in several cases. The list of cases is provided in the application and the copies of the panchnama are annexed to the application. It is stated that the said Panch has acted as Pancha in CR No. II-10 of 2017 registered with Kasarwadawali Police Station investigated by Anti-Narcotic Cell, Thane, CR No. II/38 of 2017, registered with Kalwa, Police Station investigated by Anti-Narcotic Cell, Thane, CR No. II-166 of 2017, registered with Mumbra Police Station and CR No. II-16 of 2018, investigated by Anti Narcotic Cell, Thane. It is therefore, submitted that no reliance can be placed on the search and seizure conducted through said panch witness. It is submitted that entire search and seizure operation is doubtful and hence the applicant is entitled for bail. Learned Counsel relied upon several orders passed by this Court granting bail on the ground of relying on stock panch witnesses. Reliance is placed on the decision of the Apex Court in the case of Rajesh Jagdamba Avasti V/s State of Goa , (2005) 9 SCC 773 , Hira Lal S/O Kesho Ram V/s State of Hariyana , (1971) AIR SC 356 . Reliance is also placed on order dated 21st February 1994 passed by this Court in Criminal Application No. 375 of 1994, Order dated 23rd November 1992 passed by this Court in Criminal Bail Application No. 3298 of 1992, order dated 13th January 1992 passed by this Court in Criminal Application No. 3217 of 1991. Learned Counsel also placed for consideration the decision of this Court in the case of Usman Haidarkhan Shaikh V/s State of Maharashtra , (1991) CriLJ 232 and Mohd. Hussain Babamiyan Ramzan Vs. State of Maharashtra , (1994) CriLJ 1020 . 7. Learned Counsel for the applicant further submitted that the search was conducted in the absence of the Gazetted officer which also amounts to violation of Section 50 of the NDPS Act. He submitted that it was mandatory for the respondents to conduct the personal search of the applicant in the presence of the Gazetted officer. 7. Learned Counsel for the applicant further submitted that the search was conducted in the absence of the Gazetted officer which also amounts to violation of Section 50 of the NDPS Act. He submitted that it was mandatory for the respondents to conduct the personal search of the applicant in the presence of the Gazetted officer. However, there was no such officer present during the search and seizure of the complainant. The search initiated entire seizure as it infringes the mandate under Section 50 of the NDPS Act. In support of his submission, he relied upon the recent decision of the Apex Court in the case of Arif Khan @ Agha Khan V/s State of Uttarakhand , (2018) AIR SC 2123. 8. Learned APP Mrs. Takalkar vehemently opposed the application for bail. It is submitted that there is no violation of any provisions contemplated under NDPS Act. The grounds raised by the applicant in support of his bail application are required to be adjudicated at the time of trial and this is not the stage to appreciate or evaluate the evidence. It is submitted that the applicant was appraised of his right under Section 50 of the NDPS Act. The submissions of the applicant in the facts of this case are based on disputed question of fact. The prosecution ought to be given an opportunity to prove its case during the trial qua is compliance of Section 50 of the NDPS Act. Learned APP relied upon the decision in the case of State of Punjab V/s Baldev Singh , (1999) 6 SCC 172 . She relied upon the observations made in paragraph 33 of the said decision wherein it is observed that the question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the Court on the basis of the evidence led at the trial and the findings on that issue one way or the other, would be relevant for recording an order of conviction and acquittal. It is also observed that without giving an opportunity to the prosecution to establish at the trial that the provision of Section 50 and, particularly, the safeguards provided in that Section were complied with, it would not be advisable to cut short a Criminal Trial. It is also observed that without giving an opportunity to the prosecution to establish at the trial that the provision of Section 50 and, particularly, the safeguards provided in that Section were complied with, it would not be advisable to cut short a Criminal Trial. Learned APP stressed upon the ratio of the said decision and several observations made Therein and submitted that the question relating to non compliance of the aforesaid provision will have to be dealt with at the time of trial. It is submitted that the notice issued to the applicant in writing is sufficient compliance of the aforesaid provision. It is submitted that in the said notice it has been stated that possession of the contraband and contravention of the provision of the NDPS Act is an offence and he is being informed in accordance with Section 50 that if he demands, his search would be carried out before the nearest Magistrate or the Gazetted officer and it is his right to be searched before such officers and if he demands he would be produced before the nearest Magistrate or the Gazetted officer for the purpose of search. She further submitted that the applicant has declined to have search before the officers mentioned therein and stated that he has no objection for conducting his search in the absence of the Gazetted officer. 9. Learned APP also relied upon the decision in the case of Vijaysinh Chandubha Jadeja (Supra) and submitted that in the said decision it has been observed that it is not necessary that information required to be given under Section 50 should be in prescribed form or in writing. She further submitted that Apex Court in the said decision has reiterated the law laid down in the case of State of Punjab Vs. Baldev Singh (supra). 10. Learned APP relied upon another decision of the Supreme Court in the case of Sekhar Suman Verma Vs. Superintendent of NCB and ANR , (2016) 11 SCC 368 . It is submitted that in the said decision the Apex Court has observed that the accused was appraised in writing about his right under Section 50 and he was searched. Learned APP further submitted that the Supreme Court has observed that broad analysis of evidence in the said case disclose that there was compliance of the procedural safeguard. It is submitted that in the said decision the Apex Court has observed that the accused was appraised in writing about his right under Section 50 and he was searched. Learned APP further submitted that the Supreme Court has observed that broad analysis of evidence in the said case disclose that there was compliance of the procedural safeguard. She submitted that the facts of the said case indicate that the officers had asked the accused to give in writing whether he wanted to be searched in the presence of the Gazetted officer or the Magistrate and informed him that one Gazetted officer was already with them and if he so desired, he might be searched by the said Gazetted officer as well. Learned APP submitted that the Apex Court in the said decision has relied upon the earlier decision of the Apex Court in the case of Prabbulal Vs Assistant Director, DRI , (2003) 8 SCC 449 and Prabhashankar Dubey Vs. State of MP , (2003) 8 Supreme 565 . Mr. Khan, however countered that, the Accused was represented by an Advocate appointed as Amicus Curiae and he had not appraised to apex Court the decision of the Constitution Bench of the Apex Court, in the case of Vijaysinh Jadeja (supra) the Apex Court has clearly held that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez and Prabha Shankar Dubey is neither borne out from the language of sub-Section (1) of Section 50 nor it is in consonance with the dictum laid down in the decision of State of Punjab V/s Baldev Singh (supra). To deal with the issue involved in the present application it is not necessary to advert to the decision in the case of Sekhar Verma. 11. Ms. Takalkar, Learned APP, further submitted that the question regarding professional panch utilised for search has to be dealt with at the time of trial. Merely on account of the fact that Pancha in the present case has acted as Panch in other cases would not vitiate the search and seizure. Prejudice if any caused to accused will have to be determined at the time of trial. It is submitted that the issue will have to be examined after recording evidence. 12. Merely on account of the fact that Pancha in the present case has acted as Panch in other cases would not vitiate the search and seizure. Prejudice if any caused to accused will have to be determined at the time of trial. It is submitted that the issue will have to be examined after recording evidence. 12. She further submitted that the submission of the Learned Counsel for the applicant that there was no Gazetted officer present at the time of the search and seizure is devoid of merits. It is submitted that according to the applicant absence of Gazetted officer violates Section 50 of the NDPS Act. In the ultimate analysis as observed in the case of Baldev Singh (supra), the issue with regard to compliance of Section 50 has to be considered at the time of trial. She further submitted that in the decisions of State of Punjab V/s Baldev Singh or Vijaysinh Jadeja V/s State of Gujarat, the Court has considered the issue relating to compliance of Section 50 and it is not held that Gazetted officer must be present at the time of search and seizure. The decision in the case of Arif Khan was delivered in the appeal against conviction. 13. I have perused the documents. On receipt of information accused No. 1 and 2 were apprehended. Contraband was recovered from them. According to the prosecution, they were appraised of right under Section 50 of the NDPS Act. During the course of investigation, the applicant was arrested in pursuant to statement of accused no.1. The Arrest panchnama was recorded on 17.11.2017. The applicant was found in possession of 60 gms Mephedrone. The notice under Section 50 executed in writing mentions that it is belief that he is in possession of Mephedrone powder which is Narcotic drug amounting to offence under NDPS Act, 1985. The applicant was informed that, in accordance with Section 50 of NDPS Act, if he demands he has right to be taken before the nearest Magistrate or the Gazetted officer. If he makes such demand he would be produced before the nearest Magistrate or the Gazetted officer for the purpose of conducting his search. The Applicant have purportedly given No Objection for conducting his search in the absence of Gazetted officer. Similar appraisal is also reflected in the arrest panchnama. If he makes such demand he would be produced before the nearest Magistrate or the Gazetted officer for the purpose of conducting his search. The Applicant have purportedly given No Objection for conducting his search in the absence of Gazetted officer. Similar appraisal is also reflected in the arrest panchnama. In the factual Matrix of this case the issue is apparently based on disputed question of fact. 14. In the case of State of Punjab Vs. Balbir Singh , (1994) 3 SCC 299 , the Supreme Court has analyzed the requirement of the compliance of Section 50 of NDPS Act. The Court has also analyzed the provisions of Sections 41 and 42 of the NDPS Act. Some of the accused were acquitted while some were convicted. The High Court had refused to grant leave to file an appeal against order of acquittal. It was held that compliance of Sections 42 and 50 is necessary. Subsequently the issue was dealt with by a larger Bench of the Supreme Court in the case of State of Punjab Vs. Baldev Singh (supra). It was observed that the omission of non compliance of the provisions of Section 50 of the Act may not vitiate the trial as such but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it would render his conviction and sentence unsustainable. The protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a Gazetted officer or a Magistrate, if so requires, is sacrosanct and indefeasible. It cannot be disregarded by the prosecution except at its own peril. It is pertinent to note that in paragraph 33 of the said decision it is observed as follows : "33. The question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the court on the basis of the evidence led at the trial and the finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. The question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the court on the basis of the evidence led at the trial and the finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50 and, particularly, the safeguards provided in that section were complied with, it would not be advisable to cut short a criminal trial." Thus, the aforesaid observation would indicate that the question whether or not the safeguard provided in Section 50 were observed, would have, however, to be determined by the Court on the basis of the evidence led at the trial and the finding on that issue one way or the other would be relevant for recording an order of conviction or acquittal. In paragraph 57 (5), the Supreme Court in the said decision has concluded as follows : "57 (5). That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the court on the basis of the evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50 and, particularly, the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial." Thus, without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50 and particularly the safeguards provided therein are duly complied with, it will not be permissible to cut short a criminal trial. It is pertinent to note that Act provide rigours and embargo while granting bail to an accused who is prosecuted under the provisions of the said Act subject to certain exceptions by invoking Section 37 of the NDPS Act. In the circumstances, whether there is compliance of Section 50 of the NDPS Act would be a matter of evidence and would be dealt with at the time of trial and at the stage of bail it would not be possible to determine that there was non compliance of the said provision. In the circumstances, whether there is compliance of Section 50 of the NDPS Act would be a matter of evidence and would be dealt with at the time of trial and at the stage of bail it would not be possible to determine that there was non compliance of the said provision. The decisions relied upon by the learned counsel for the applicant wherein bail was granted, on the ground of non compliance of Section 50 of the NDPS Act, there was no occasion for this Court to deal with the observations made by the Constitution Bench of Supreme Court in the aforesaid decision. 15. The Apex Court in the aforesaid decision has also observed that it is not necessary to give the information to the person to be searched about his right in writing. It is sufficient to subject information is communicated to the concerned person orally and as far as possible in presence of the independent and respectable persons witnessing the arrest and search. The prosecution must have at the trial establish that empowered officer had conveyed the information to the concerned persons of his right of being searched in the presence of a Magistrate or a Gazetted officer at the time of intended search. Court have to be satisfied at the trial of the case about due compliance of requirements provided in Section 50. As stated above, the Apex Court in the Paragraph 33 has categorically stated that the question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the Court on the basis of the evidence led at the trial and the findings on that issue, one way or the other would be relevant for recording an order of conviction and acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50 and particularly, the safeguards provided in that Section were complied with, it would not be advisable to cut short a Criminal trial. It is also observed that in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched. It is also observed that in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched. The Court did not express any opinion whether the provision of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from sub-Section (1) of Section 50, may render the recovery of the contraband suspect and conviction and sentence of accused made unsustainable in law. Hence, bail cannot be granted to applicant on the basis of submissions advanced by learned Counsel for applicant. Even in the case of Vijaysinh Jadeja (supra) decided by the Constitutional Bench the principle enunciated in the earlier decision of the Constitution bench were reiterated. In this decision also it was observed that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 has been made in the matter of trial. It would neither possible or feasible to laid down any absolute formula in that behalf. Thus, the issue about non compliance of the Section 50 has to be dealt with at the time of trial. 16. Learned Advocate for the applicant has further relied upon the order passed in the case of Gurnam Singh (supra) delivered on 18/09/2015 by the Apex Court granting bail to the accused for non compliance of Section 50. However, it is not clear as to under what circumstances the bail was granted by the Apex Court. The factual aspect are not appearing in the said order. There is reference of earlier decision of the Apex Court in the case of State of Rajasthan Vs. Parmanand & Anr. (supra). The other submission of the Learned Counsel for the applicant that the Panch in search and seizure of the applicant has acted as panch in other cases can be appreciated at trial. The said fact has to be proved in the evidence at the time of trial. 17. It is pertinent to note that the trial is yet to commence. The evidence of the said witness acting as pancha cannot be discarded at this stage. In the case of State of U.P. Vs. The said fact has to be proved in the evidence at the time of trial. 17. It is pertinent to note that the trial is yet to commence. The evidence of the said witness acting as pancha cannot be discarded at this stage. In the case of State of U.P. Vs. Zakaullah , (1998) AIR SC 1474, the observation of the Supreme Court in paragraph 10 can be quoted as follow : "10 The necessity for "independent witness" in cases involving police raid or police search is incorporated in the statute not for the purpose of helping the indicted person to bypass the evidence of those panch witnesses who have had some acquaintance with the police or officers conducting the search at some time or the other. Acquaintance with the police by itself would not destroy a man''s independent outlook. In a society where police involvement is a regular phenomenon many people would get acquainted with the police. But as long as they are not dependent on the police for their living or liberty or for any other matter, it cannot be said that those are not independent persons. If the police in order to carry out official duties, have sought the help of any other person he would not forfeit his independent character by giving help to police action. The requirement to have independent witness to corroborate the evidence of the police is to be viewed from a realistic angle. Every citizen of India must be presumed to be an independent person until it is proved that he was a dependent of the police or other officials for any purpose whatsoever." 18. Thus, the authenticity of the evidence the panch referred to in the present case will have to be determined at the time of trial. In the case of Nana Keshav Lagad V/s. State of Maharashtra , (2013) 12 SCC 721 , the Supreme Court has observed that merely because panch witness in question had tendered evidence in another case, it cannot held that score alone his evidence should be rejected. In the decision rendered by this Court in Benard Chapanga, it was observed that acting as Panch witness in previous cases does not by itself disentitle his creditworthiness. A citizen cannot be stamped to be a liar unless his evidence has been examined with proper approach guarded by normal human experience and prudence of prudent person. In the decision rendered by this Court in Benard Chapanga, it was observed that acting as Panch witness in previous cases does not by itself disentitle his creditworthiness. A citizen cannot be stamped to be a liar unless his evidence has been examined with proper approach guarded by normal human experience and prudence of prudent person. In paragraph 8 while summing up it was observed as follows: " Thus, summing up the ratio of the judgments cited above, and proper interpretation of the independent character of the witnesses, some important aspect will have to be considered and kept in view, it can be enumerated for consideration. Its limited listing would not be a proper one. There would be other factors also which would weigh at the time of considering the independent or dependent character of the witness who had acted as a panch witness for police in raids or seizures. They can be numbered but cannot be limited. (1) the status of such witness in the society, (2) whether such witness is amenable to police influence, (3) whether such witness has ground to be afraid of police or such reading agency - Whether such person has any cause to beg for the favour of police or such raiding agency, (4) whether such person can afford to displease the police or such raiding agency, (5) whether such person can remain fearless and can refuse the request of police or such agency to act as panch witness for untruthful case but has accepted to act as panch witness only for helping the cause of law and justice in truthful case. (6) whether such person has any independent source of livelihood or whether he is dependent on police or such raiding agency for his livelihood or his status in the society, (7) whether the witness has regard to the rule of law and therefore has acted as a panch witness or a witness, (8) whether such a witness is law abiding person and himself happens to be a disciplined and law regulated person, (9) whether he is found to be law breaking person, whether there is any suspicious things in his ways of livelihood, behaviour or conduct. (11) whether police or such raiding agency had asked him the questions about his impartiality to acting as a panch witness or his participation in former cases of traps, raids and seizures." 19. (11) whether police or such raiding agency had asked him the questions about his impartiality to acting as a panch witness or his participation in former cases of traps, raids and seizures." 19. The prejudice if any has to be proved in evidence and without examining the said witness, the fact that he has acted as panch for search and seizure for the applicant cannot be discarded. The decisions in cases of Rajesh Jagdamba (supra), Hiralal (supra), Usman Haidarkhan Shaikh (supra) and Mohd. Husain Ramzan (supra) relied by advocate for applicant were delivered at this stage of appeal while appreciating evidence and in facts of these cases. The orders grading bail relied by applicant cannot be considered in view of observations made herein and since the trial has not yet commenced. The embargo under Section 37 of NDPS Act cannot be brushed aside while dealing with such issue at this stage for grant of bail. 20. The other submission is that search and seizure of the applicant was conducted in the absence of gazetted officer. Ultimately the submission of the Learned Counsel for the applicant is that the absence of the Gazetted officer during search and seizure amounts to violation of Section 50 of the said Act. It is also contended that recovery/seizure would vitiated. Learned Counsel has strongly relied upon the decision of the Apex Court in the case of Arif Khan. The said decision was rendered after the trial was conducted and while dealing with the appeal by the Apex Court. 21. As stated hereinabove, the issue of compliance of Section 50 can be agitated during the trial. The Constitution Bench in the decision referred to above, has dealt with the issue with regards to compliance of Section 50 and has also observed as to in what manner the compliance is required to be done. The question regarding compliance of Section 50 is again dealt with in the case of Vijaysinh Jadeja Vs. State of Gujarat. 22. It is pertinent to note that in the decision of Constitution Bench in the case of State of Punjab Vs. Baldev Singh and in the case of Vijaysinh Jadeja Vs. State of Gujarat, has dealt the issue relating to compliance of Section 50 of the NDPS Act. State of Gujarat. 22. It is pertinent to note that in the decision of Constitution Bench in the case of State of Punjab Vs. Baldev Singh and in the case of Vijaysinh Jadeja Vs. State of Gujarat, has dealt the issue relating to compliance of Section 50 of the NDPS Act. The ratio of the said decision does not indicate that at the time of search and seizure the presence of the Gazetted officer is mandatory. The Apex Court further dealt with the appraisal of the right contemplated under Section 50 and after the appraisal if the suspect requires that he should be searched before the Gazetted officer or the Magistrate, the requisition is required to be complied with. In any case the Apex Court has also observed that issue relating to compliance of Section 50 is matter of evidence and dealt with at the time of trial. 23. In the light of the aforesaid observations no case for granting bail is made out. Hence the application deserves to be rejected. Hence, I pass following order : ORDER Criminal Bail Application No. 3161 of 2018 is rejected.