Bombay High Court
Siddharth Pithani vs Union Of India And Anr on 4 July, 2022
Author: Bharati Dangre
Bench: Bharati Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.4396 OF 2021
Siddharth Pithani .. Applicant
Versus
Union of India and anr .. Respondents
...
Mr.Taraq Sayed i/b Advait Tamhankar for the applicant.
Mr.Shriram Shirsat with Amandeep Singh Sra for respondent
No.1- NCB
CORAM: BHARATI DANGRE, J.
DATED : 4th JULY, 2022
P.C:-
1 The applicant, who came to be arrested by the
Narcotics Control Bureau (NCB) on 26/5/2021 in C.R.No. 16 of
2020, seek his release on bail on the ground that the complaint
do not disclose sufficient material against him, and therefore, his
further detention in judicial custody is unnecessary, and it is
violative of Article 21 of the Constitution which ensure him right
to life and liberty.
2 I have heard Advocate Tariq Sayed for the applicant
and Advocate Shriram Shirsat a/w Advocate Amandeep Singh Sra
for the respondent, Union of India.
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The Intelligence Officer filed a complaint before the
Special Judge for NDPS against the present applicant and one
Hemant Shah, in continuation of the NDPS Special Case
No.344/2021 against 33 accused persons, on completing the
investigation in C.R.No.16/2020 in which, the applicant and
Hemant Shah are shown as 'wanted' accused.
3 The original complaint was instituted in the
background of an incident dated 28/8/2020, when a team of
NCB Mumbai and NCB quarters, New Delhi, apprehended two
persons named, Abbas Ramzan Ali Lakhani and one Karan
Arora, resident of Powai. Total 59 grams of ganja was recovered
from the duo and they came to be arrested. During the
investigation of the case of late Sushant Singh Rajput (SSR), a
film actor, total 35 accused persons were arrested in
C.R.No.16/2020. On further investigation with Abbas Ali and
Karan Arora, six persons were apprehended and on taking the
investigation ahead, based on the alleged disclosure made by
Accused no.6, Samuel Miranda and accused no.8 Dipesh Sawant,
the applicant was indicted of procurement of
ganja/weed/joint/charas at Mumbai. The applicant came to be
apprehended from Hyderabad on 25/5/2021 and is accused
offences punishable u/s.8(c) r/w Section 20(b)(ii)(a), 27, 27-A,
28, 29 and 35 of the NDPS Act, 1985. His statement u/s.67 of
the NDPS Act alleged to be a voluntary one, was recorded, where
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he admit his involvement in procurement, purchase, sale,
consumption, preparation under the NDPS Act and accept
himself to be a part of conspiracy.
4 The learned counsel Shri Tariq Sayed for the
applicant would submit that the accusations faced by the
applicant barring under Section 27-A connect him to a small
quantity of ganja and even on conviction, he would have to suffer
Rigorous Imprisonment for a term which may extend to one year
or with fine which may extend to Rs.10,000/- or both. As far as
the charge faced by him for consumption, punishable u/s.27, the
maximum punishment imposed upon him, may extend to one
year or fine of Rs.20,000/-. All other offences being u/s.28 and
29, pertaining to abetment would also, at the most, carry the same
penalty as for the concerned section with which he is charged.
He would submit that only offence u/s.27A, which he
is accused of, shall invite a punishment of Rigorous
Imprisonment for a term which shall not be less than 10 years,
but which may extend to 20 years and also fine which may extend
upto Rs.Two lakhs.
The learned counsel would submit that in the entire
complaint, there is no material to establish the accusation of
indulging in financing any of the activities, specified in sub-
clauses (1) to (5) of clause viii(b) of Section 2 and in absence of
any such material, his incarceration is unwarranted. Learned
counsel has invited my attention to the various statements
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recorded u/s.164 and according to him, none of them is
inculpatory. The three statements of the driver, cook and
attendant of Sushant Singh Rajput, which are relied upon by the
NCB, according to the learned counsel, do not indict him at all.
In short, his statement is that the applicant has no connection
whatsoever withi the other accused in the instant case and by
submitting that the two accused i.e. accused nos.6 and 8 who
have named him, are also released on bail. He thus claim parity
with them.
5 Per contra, Mr.Shirsat, by referring to the material in
the complaint would submit that the applicant was handling the
accounts of Sushant Singh Rajput and by referring to his
statement u/s.67 of the NDPS Act, he would submit that various
entries in the bank statement of Sushant Singh refer to 'Pooja
Samagri', which was a code to identify the transaction to buy
weed/ganja/charas/marijuina, and according to him, the applicant
himself has disclosed the modus operandi; being first, the amount
was transferred from the main account to secondary account of
Sushant Singh and then, Samuel Miranda/Ashok/Sahil Sagar
would withdraw the amount and use the cash to buy the
narcotics. Mr.Shirsat would submit that the applicant has
admitted that he used to operate Sushant's banking Apps and he
had specifically admitted that he used to operate the Kotak App
from his I-Pad and was personally aware, that this account was
used to purchase the contraband. Mr.Shirsat has relied upon the
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bank statement of Sushant Singh Rajput from Kotak Mahindra
Bank for the period from 1/3/2017 to 3/8/2020, which refer to
numerous entries, showing withdrawal of huge amounts under
the caption 'pooja samagri' and by referring to the aforesaid
entries, his submission is that since the applicant used to operate
the said account, the charge u/s.27-A is made out. Further, by
referring to the bank statement of the present applicant, he has
invited my attention to five entries recorded in the year 2020 ,
where some amount is received into his account from Sushant
Singh Rajput.
Learned counsel Shirsat would also rely upon various
phone calls between the accused persons, and according to him,
that substantiate the stand of the department that he used to
arrange the contraband in large quantity for Sushant Singh Rajput
and therefore, he played a vital role in commission of the offence.
In the wake of the application of Section 27-A, the submission is,
rigors of Section 37 of the NDPS Act are attracted and according
to him, the Special Judge, NDPS has prima facie recorded
involvement of the applicant in procurement, sale, purchase,
consumption and preparation of contraband.
6 With the assistance of the respective counsel, I have
perused the complaint along with the material placed on record
by the NCB along with its affidavit.
The applicant is accused of financing of illicit traffic
and it is necessary to focus upon the relevant provision contained
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in the Act of 1985. Section 27-A reads thus :-
"27-A. Punishment for financing illicit traffic and
harbouring offenders.- Whoever indulges in financing,
directly or indirectly, any of the activities specified in
sub-clauses (i) to (v) of [clause (viiib) of section 2] or
harbours any person engaged in any of the
aforementioned activities, shall be punishable with
rigorous imprisonment for a term which shall not be less
than ten years but which may extend to twenty years and
shall also be liable to fine which shall not be less than
one lakh rupees but which may extend to two lakh
rupees."
7 The word 'financing' in normal terms would convey
providing the money to pay for something. 'Financing' in
commercial language would indicate the process of providing
funds for business activities, making purchases or investing. It
may also indicate a process of raising funds or capital or any kind
of expenditure and may cover the process of channeling funds in
form of credit, loans or invested capital to the economic entities
that most need them or can put them to productive use.
When Section 27-A refer to 'financing', it necessarily
mean an activity where a person provide the finances for illicit
traffic in relation to Narcotic Drug and Psychotropic Substances
to various activities mentioned in Section 2(viiib) which may
include cultivation, engaging in production, manufacture,
possession sale, purchase, transportation, use or consumption,
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import, export of Narcotic drug and Psychotropic substances.
Since indulging in financing is a serious business and the prime
object of the NDPS Act, 1985, being to deal with the menace of
drug trafficking, with the country facing problem of trafficking in
illicit drugs, the said activity is made punishable with a harsher
penalty.
8 Very recently, the term 'financing' used in Section 27-
A has been interpreted in case of Rhea Chakraborty Vs. Union of
India (Criminal Bail Application St No.2308/2020) by the
learned Single Judge of this Court (J, Sarang Kotwal) in the
following words :-
"57. "Financing" is not defined under the Act. The
Concise Oxford Dictionary defines the word
"finance" as "(1) the management of (esp. public)
money, (2) monetary support for an enterprise, (3)
(in pl.) the money resources of a state, company, or
person, to provide capital for (a person or
enterprise)".
58. Black's Law Dictionary gives meaning of the
word "finance" as "to raise or provide funds".
59. Thus, "financing" as generally understood, is
offering monetary support or provide funds.
60. Therefore, simply providing money for a
particular transaction or other transactions will not be
financing of that activity. Financing will have to be
interpreted to mean to provide funds for either
making that particular activity operational or for
sustaining it. It is the financial support which directly
or indirectly is cause of existence of such illicit traffic.
The word "financing" would necessarily refer to some
activities involving illegal trade or business.
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61. The allegations against the Applicant of spending
money in procuring drugs for Sushant Singh Rajput
will not, 58 / 70 59 1.3-BA-st-2386-2020 therefore,
mean that she had financed illicit traffic."
It will have to be therefore, ascertained from the material in the
complaint whether the applicant has indulged in financing,
directly or indirectly, any of the activities specified in sub-clause
(1) to (5) of clause (viii)(b) of Section 2.
9 When the material relied upon Mr.Shirsat contained
in the charge-sheet is carefully scanned, to ascertain whether the
act/conduct attributed to the applicant amount to 'financing', I
prima facie find the material short of the said accusation.
In order to establish the charge, the NCB heavily fall
back on the statement of the applicant recorded u/s.67 of NDPS.
Reading the said statement, without focusing on its admissibility
or otherwise, at this stage, a reference is found in respect of 'pooja
samagri' which was and assigned Code in the bank statement of
late Sushant Singh. When specifically asked, what he know about
the said Code, the applicant has answered as below :-
"Pooja Samagri was the code to identify which transaction
was made to buy weed/ganja/hashish/charas/marajuina on
bank statements (Kotak) of Sushant Singh Rajput, first
amount was transferred from the main account to
secondary account, then Samuel Miranda/Ashok/Sahil
Sagar would withdraw the amount and use that cash to
buy the substance".
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On being asked whether he was operating Sushant's
banking Apps and why, he responded by stating " after Haokip
was fired, SSR had asked him to clear all dues and he used
Sushant's phone to clear those dues. He used the I-Phone to add
the details in the APP, upon which Sushant received an OTP on
his personal I-Phone (read) and SSR himself entered the OTP
and the M-pin in the App".
10 The respondent rely upon the bank statement of
Sushant Singh from Kotak Mahindra Bank, where various
withdrawals are recorded under the narration "pooja samagri". It
is admitted that these are huge amounts and the withdrawals are
frequent.
The statement of the co-accused Samuel Miranda
recorded u/s.67 is also relied upon by the NCB and when the said
statement is carefully read, it make a disclosure that the applicant
was associated with Sushant Singh and he has narrated association
of the Actor, with several persons in different time frames and the
statement is to the effect that Sushant and his friends used to
often smoke ganja by frequently organizing parties and get
togethers. As far as the applicant is concerned, he is stated to
have accompanied him to Patna along with other co-accused.
Realizing that Samuel, Haokip were not doing their job properly
and many payments were pending, the applicant was introduced
in the picture for handling the mobile banking of Sushant. The
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co-accused specifically state that after Samuel, Haokip left, the
cook used to organize ganja for Sushant and either Siddharth
Pithani (applicant) or he himself would transfer him the funds
through mobile banking, after asking Sushant and would sent the
screen shot to the accountant.
As per Samuel Miranda, in January, when Sushant
was not well, the applicant was asked to come and stay with him.
Sushant proceeded to Chandigarh along with the applicant and
his bodyguard Sahil. One box of joint was given to Siddharth
Pithani i.e. the applicant, for SSR.
11 The bank statement of the applicant also form part of
the charge-sheet and in the entire statement, covering a period
from 1/4/2018 to 29/5/2021, barring five entries of an amount of
Rs.20,000/-, Rs.15,000/-, Rs.5,000/-, Rs.6,237/-, Rs.5,000/-
received from Sushant Singh, there appear to be no major
transaction.
The learned counsel for the applicant offered an
explanation that this amount was due and payable to him from
Sushant since he was rendering services to him.
12 I also had an opportunity to look into the 164
statements of the driver, cook and the attendant and on it's
perusal, I am unable to find any statement attributing role of
financing to the applicant, though the house keeping person has
stated that his various friends used to party with him, which
included the present applicant. The statement of the cook
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recorded u/s.164 throw light upon the life-style of the actor where
he refer to various parties being organized. As per this witness, on
14/6/2020, when Sushant was unwell, Siddharth was present in
the other room. He had also stated that when he entered
Sushant's room to offer juice, the room was filled with smoke and
his hands were shaking. Even the 164 statement of the third
witness who was his bodyguard, also do not make any reference to
the applicant financing the purchase of drugs/narcotics by
Sushant Singh.
The statements of the aforesaid witnesses recorded
under Section 164, which are heavily relied upon by the
prosecution to which the learned Special judge has made a
reference without looking into the statements, do not take the
case of the NCB any further to establish the charge u/s.27A.
13 From the material compiled in the charge-sheet, it can
be discerned that the applicant is accused of smoking ganja and
therefore, he is charged with Section 20(b)(iii)(a). His statement
u/s.67 refer to certain photographs where he as well as Sushant
Singh is seen with joint as well as pipes in their hand. The
method of purchasing ganja/charas by SSR appear to be
transferring of the amount from one of his account, to his other
account in Kotak Mahindra Bank, from where the money was
withdrawn and the contraband was purchased by several persons.
Though the applicant has handled his accounts, it is not the case
of the NCB that he transferred some amount to Sushant Singh
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and from this amount, the contraband was purchased. The Kotak
account of Sushant Singh refer to certain withdrawals on account
of 'pooja samagri' but that was Sushant's own money and the
contraband was arranged for him by the said money.
Prima facie, it appear that the applicant has not
financed any transaction in which the contraband consumed by
accused was purchased.
When questioned about the details of the first
account of Sushant Singh from which the amount was transferred
to his account in Kotak, Mr.Shirsat state that there is no
investigation on this aspect.
14 Considering the material compiled in the charge-
sheet, no case is made out against the applicant for financing the
illicit traffic and, therefore, the learned counsel for the applicant is
perfectly justified in relying upon the observations in the case of
Rhea Chakraborty (supra) and he would submit that his case is on
a better footing, since the applicant has not provided money, but
it was Sushant's own money from which the contraband was
purchased.
15 In the wake of the aforesaid material compiled in the
charge-sheet, there are no reasonable grounds for believing that
the applicant is guilty of financing the illicit traffic in
Narcotics/drugs. Without any antecedents, it is not the case of the
NCB that he would commit any further offence while on bail.
The NCB has not expressed any apprehension about flight risk of
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the applicant. On being satisfied about the two ingredients
contemplated u/s/37(1)(ii), recording a prima facie case in favour
of the applicant, I am inclined to release him on bail.
By recording that the applicant is prima facie not
guilty of the charge u/s.27-A, and as far as the other offences with
which he is charged, involving small quantity, the punishment
imposed upon him at the most, may extend upto one year, he
deserve his liberty.
16 Needless to say that the observations made above are
limited to the decision of the present application filed by the
applicant seeking his release on bail, and shall not be taken as an
opinion expressed on the merits of the prosecution case. Hence,
the following order :-
ORDER
(a) The Applicant - Sidharth Pithani in connection with C.R.No.16/2020 registered with Narcotics Control Bureau shall be released on bail on furnishing P.R. bond to the extent of Rs.50,000/- with one or two sureties of the like amount.
(b) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with facts of case so as to dissuade him from disclosing the facts to Court or any Police Officer. The Applicant should not tamper with evidence.
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(c) The Applicant shall attend the trial regularly, unless and until exempted by the trial Court.
16 The Application is allowed in the aforestated terms.
( SMT. BHARATI DANGRE, J.) Tilak ::: Uploaded on - 04/07/2022 ::: Downloaded on - 05/07/2022 07:26:07 :::