[Aryan Khan drug case] Unauthorised officer carrying search illegal; ground for bail: Mumbai court

Search and seizure effected against the accused was illegal, a Mumbai court reasoned while granting bail to Nupur Satija, co-accused in the cruise ship drug case in which Shah Rukh Khan’s son Aryan Khan is the prime accused (Nupur Satija & Anr v. Union of India)..Satija was granted bail on October 30 along with 8 other accused. However, the 15-page order granting bail to her and co-accused Gomit Chopra was made available only on Friday.NCB had intercepted the two with intermediate quantity of contraband. NCB found 4 pills of ecstasy weighing 1.59 grams from Satija’s room and they allegedly seized 4 pills of MDMA (ecstasy) with 3 grams of cocaine and cash amounting to ₹93,000 from Chopra..Satija had sought bail on the ground that she had been allegedly found with intermediate quantity of drugs which was a non-commercial quantity and hence the rigours of Section 37 will not apply.It was also contended that there was non-compliance with Section 46 of the Code of Criminal Procedure (CrPC) which provides for the manner in which an arrest is to be carried out.Grounds were that panchnama was not carried out by an authorised officer; Satija was arrested by a male officer and the panchnama as per the document started after sunrise and before sunset.Advocate Ayaz khan appearing on behalf of Satija, argued that the search of the room was carried out as per instructions of the investigating officer by a female panch witness who was not authorised to effect search and seizure.Khan relied upon several previous decisions of the Bombay High Court which had held that when search is carried out by a person not empowered or authorised, there is breach of Section 42 of the Narcotic Drugs Psychotropic Substances Act (NDPS Act) and hence accused is entitled to bail..Advocate Kushal Mor representing Chopra, argued that only intermediate quantity was found with him and hence rigours of Section 37 will not apply. Additionally, Chopra had no concern with any other accused. So the possession was only an individual possession meant only for consumption..On the contrary, Special Public Prosecutors AM Chimalkar and Advait Sethna argued that NCB had credible information from the officers based on which seizures were made of certain contrabands.Based on the information, arrests were made of persons holding small, intermediate and commercial quantities of contraband. They all formed part of a drug chain and indulged in illicit trafficking, the prosecutor stated pressing for rejection of the bail applications..As far as the material against both accused was concerned, the prosecution relied upon WhatsApp chats which the Court observed was only pertaining to consumption and not sale or purchase..On the contention of conspiracy, the Special Judge VV Patil noted that the Bombay High Court had already granted bail to Aryan Khan and two other accused and therefore on the grounds of parity bail ought to be granted to present applicants as well.The Court also noted that considering the material on record it cannot be said that prima facie there was conspiracy, and proceeded to grant bail to both accused.As far as Satija was concerned, the Special Judge also observed that since the search had been taken by a female panch and not an officer empowered to effect search and seizure, there was a breach of Section 42 and she would be entitled to bail on that ground too.“She is also entitled to bail on the ground of illegal seizure and breach of provisions of Sec. 42 of NDPS Act,” the order said..[Read order]