Bombay High Court
Zaid Javed Petiwala vs Narcotics Control Bureau And Anr on 10 November, 2022
Author: Bharati Dangre
Bench: Bharati Dangre
(34)BA-2309-1010.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.2309 OF 2022
Zaid Javed Petiwala ] .. Applicant
vs.
Narcotics Control Bureau & Anr. ] .. Respondents
ALONGWITH
BAIL APPLICATION NO.1010 OF 2022
Shaikh Faiz Nawaz @ Sonu ] .. Applicant
vs.
Narcotics Control Bureau & Anr. ] .. Respondents
Mr.Sudeep Pasbola a/w S.C. Mishra and Rashid Khan i/b Ayush
Pasbola for the Applicant in BA No.2309/2022.
Mr.Dilip Mishra a/w Ayaz Khan for the Applicant in BA No.1010/2022.
Mr.Shreeram Shirsat a/w Amandeep Singh Sra, Nishi Singhvi, Madhur
Salkar, Shekhar Mane, Anna Oommen for Respondent No.1-NCB.
Mr.S.H. Yadav, APP for State.
CORAM : BHARATI DANGRE, J
DATE : 10th NOVEMBER, 2022.
P.C.
1] Two Applicants seek their release on bail on being charged in
case No.NCB/BZU/CR-35/2021 for the offence punishable under NDPS
Act. Applicant Zaid Petiwala is charged for the offence punishable
under Sections 20(b)(ii)A, 21, 22(c), 23(c), 27, 27A, 28 and 29 of the
NDPS Act. Applicant Shaikh Faiz Nawaz is charged for the offence
punishable under Sections 20(b)(ii)A, 21, 22(c), 23(c), 28 and 29 of the
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NDPS Act. Applicant Zaid Petiwala came to be arrested on
10.04.2021, whereas Applicant Shaikh Faiz Nawaz came to be
arrested on 09.04.2021.
2] The case of the prosecution can be summarised as under :
(a) That on 08/04/2021 a secret information was received by
Investigating Officer Kiran Babu that one person namely Zaid Rana is
dealing/selling of LSD, Ganja & DAB from his house at Room No. B-
203, Evershine Green, Oshiwara, Andheri (W), Mumbai 400 102. The
said information was reduced into writing and forwarded to
Superintendent & Zonal Director. They directed to form a team and
conduct raid.
(b) That thereafter panchas were arranged. That thereafter the
officers alongwith panchas reached the spot at around 10.20 hours.
That Accused No. 2 Zaid Rana opened the door and he was informed
about the information and purpose of visit of officers alongwith the
Panchas. That accordingly the raid was effected. That on enquiry
Accused No. 2 Zaid Rana voluntarily removed the LSD blots from his
wallet. The same were placed in a brown paper envelope, sealed and
marked as "P".
(c) That on further enquiry Accused No.2 informed that some
contraband is in his Honda Activa. That search of Honda resulted in
recovery of 22 grams of green leafy substance purported to be Ganja,
one capsule of unknown psychotropic substance and one dab of
cannabis. That a Panchnama in respect of the above seizure was
prepared and completed.
(d) That statement of Accused No. 2 Zaid Rana was recorded on
09.04.2021 and he was arrested at 2 p.m. on 09.04.2021. That in the
said statement the name of the Accused No.4 was mentioned alongwith
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his residential address.
(e) That as the name and address of the Accused No. 4 was
revealed in the statement of Accused No. 2, an information note was
prepared and submitted before the superior.
(f) That a team was organized under the supervision of IO Vijay
Shinde. It is alleged that during the search of the Accused No. 4 officers
recovered from his possession 25 grams of charas during the
panchanama at Yamuna Nagar, Lokhandwala, Bank Road, Oshiwara.
Andheri west, Mumbai. That the panchnama of the same was
completed at 20.45 hours on 08.04.2021.
(g) That thereafter the statement of Accused No. 4 was recorded
by 10 A.K.Singh on 09.04.2021 and he was arrested at 14.15 hours.
(h) That as the name of the Applicant was revealed during the
statement of co-accused, hence the Applicant Shaikh Faiz was
summoned and arrested after recording of his statement on 09/04/2021
by IO A. K. Singh.
(i) That the Accused No. 1 was summoned on 09.04.2021.
His statement was recorded on 10.04.2021 by IO A.K. Singh.
Thereafter he was arrested in the present crime.
(j) It is alleged that on 12.04.2021, the officers further received an
information regarding a parcel at India Post, Vile Parle (E) booked from
Tamil Nadu to Mumbai having psychotropic substance. That the officer
of the Respondent went to the alleged place of the information and
conducted the search of the parcel which resulted in recovery of 80
LSD blots paper weighing 1.60 gms. That the same was packed and
sealed vide Panchnama dated 12.04.2021 at 13.30 hours.
3] During the course of investigation, prosecution recorded
statements of various witnesses. After completion of investigation, the
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prosecution has filed charge-sheet vide NDPS Special Case No.1231
of 2021).
4] Heard the learned counsel for the Applicant Mr.Sudeep Pasbola
alongwith Mr.Dilip Mishra i/b Mr.Ayaz Khan. Also heard Mr.Shreeram
Shirsat for NCB and Mr.S.H. Yadav, APP for the State.
5] As the investigation progressed, notice was issued to the
arrested accused and their statements under Section 67 of the NDPS
Act came to be recorded. The prosecution rely upon the call data
analysis reflecting telephone calls exchanged between co-accused and
same are compiled in the charge-sheet after obtaining certificate under
Section 65B of the Indian Evidence Act. Apart from accused, the
independent statements of several witnesses have been filed alongwith
the charge-sheet to demonstrate the case of the prosecution that all
the four accused persons entered into a conspiracy to procure,
purchase and sell, possess, transport, finance and thus committed
offence under NDPS Act, 1985.
6] Applicant Zaid Petiwala is charged for financing, whereas
Accused Zaid Rana was found in possession of 70 blots of LSD
commercial quantity. There is no recovery effected from Applicant
Shaikh Faiz, whereas, from accused No.4 there is recovery of 25 Gram
Charas and it is informed that he has already been released on bail.
7] With the able assistance of the respective counsels, I have
perused the material compiled in the charge-sheet. While considering
the case of the present Applicants, one of whom is alleged to be a
financer/supplier and one is alleged to be a trader, it can be seen that
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the complaint makes reference to the notice issued under Section 67 of
the NDPS Act and Applicant Zaid Petiwala recorded his statement on
08.04.2021 on the basis of Panchanama dated 08.04.2021 voluntary
statement of accused No.1, he was placed under arrest on 10.04.2021
for his alleged involvement in the conspiracy for procurement/
possession, transportation, sale and purchase, in an attempt to commit
offence under the NDPS Act with other known and unknown persons in
connection with seizure of 1.32 Grams LSD 70 blots from accused No.1
and 22 Grams of green leafy substance purported to be Ganja.
8] Apart from this, based on the call data analysis, it is alleged that
Mobile No. 9619532744 was issued to one Sana Javed, which was
used by Applicant Zaid Petiwala and Mobile No.9594518707 issued to
one Khalid was used by Accused No.2 Rana. The CDR between two,
forms basis of accusation that they were in constant touch with each
other at the time of offence.
9] My attention is invited to the statement of accused No.1 where it
is alleged that he has admitted his complicity in the subject crime and
specifically incriminating statement reads thus :
"On being asked I want to state that 1, Arbaaz
Ukanni, Zaid Rana and Sonu are doing the drugs business
since one year. We have also received the first consignment
since four to five month back. This is our second
consignment. About a week ago 1 was placed an order for
purchase of 200 numbers blots of LSD through Wickr Me
Network. The payment of 200 numbers blots has also been
made by me through PaxfulApp. As per my knowledge
amount of payment was approximate 50 to 52 thousand in
Indian currency.
On hearing about the raid of NCB at various places
in near vicinity of my area, we took the decision that we may
hold the delivery of 100 blots for some time. One week back,
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the delivery of 100 blots of LSD has been received by Zaid
Rana at his residence building namely Ever shine where he
is residing with his family. Out of 100 blots, 30 blots of LSD
have been sold by us at various places of Mumbai. The
remaining 70 blots are balance to us which was recovered
from Zaid Rana on 08.04.2021 by NCB team."
10] However, it is also stated that there is an account on WICKR ME
Network and he has produced photo of same which is compiled in the
charge-sheet. He has admitted that there are many vendors on the
said network and even dark net is used for purchasing drugs. A
specific statement is made that the ID was also used some time by
Arbaaz Ukani for purchase of some psychotropic substances. The
mobile number of Arbaaz Ukani is also given. Admittedly, Arbaaz Ukani
si not impleaded as an accused.
11] The learned counsel for the Applicant is extremely critical of the
approach of the NCB in being choosing to arraign the accused persons
and I am in agreement with the said submission.
It can be apparently seen that in the statement of the Applicant
recorded under Section 67 of the NDPS Act, he has specifically named
Arbaaz Ukani and has assigned specific role to him by alleging that ID
created by him was used by this person for purchase of some
psychotropic substances. But for the reasons best known, he is not
arraigned as an accused.
When Mr.Shirsat, the learned counsel for the NCB is asked to
explain the above lapse, he states that he was not available for
investigation.
12] The learned counsel for the Applicant has placed on record
distinct Panchanamas to establish that Arbaaz Ukani has acted as
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Panch witness on behalf of NCB and this approach of the NCB speaks
volume. I refrain myself from commenting any further.
13] The NCB has relied upon the statements of Applicants recorded
under Section 67 of the NDPS Act. As in the case of Applicant Zaid
Petiwala I have already reproduced the incriminatory statement made
by him.
14] I have specifically asked Mr. Shirsat as to whether NCB has
investigated about the account details which was supplied by the said
Applicant and whether it has been able to trace any transaction/dealing
through the said account. The response of the NCB is in the negative.
When asked whether the payment as been ascertained through
PaxfulApp as indicated by the Applicant Zaid Petiwala, the NCB states
that they have not carried out any investigation on the said aspect since
the Applicant himself has admitted of dealing with psychotropic
substance through the said APP and account.
15] The position in law as regards statement recorded under Section
67 is no more in dispute as the Hon'ble Apex Court in the case of
Toofan Singh vs. State of Tamilnadu (2021) 4 SCC 1 has settled the
position to the effect that any confessional statement recorded under
Section 67 of the NDPS Act is inadmissible in trial of an offence under
the Act.
However, the position has been strengthened in the case of
State by (NCB) Bengaluru vs. Pallulabid Ahmad Arimutta & Anr. in
2022(1)SCJ 454 with regard to the law laid down in Toofan Singh is
even applicable at the stage of grant of bail. If the material collected
during investigation is not admissible at the stage of trial and cannot be
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considered as admissible evidence, the said evidence cannot be used
for detaining the Applicant/Accused and incarcerate him till the stage of
trial when ultimately the evidence will not held to be admissible.
16] Apart from the statement under Section 67 of the NDPS Act,
there is no independent evidence available with the NCB to exhibit
involvement of the Applicant in the subject CR. Accused No.1 is
accused of offence under Section 27A of the NDPS Act, which
prescribe punishment for financial illicit traffic. Barring statement under
Section 67 of the NDPS Act, prima-facie there is no material in the
charge-sheet to demonstrate his role as financing the activities of illicit
trade.
17] Applicant Zaid Petiwala is charged as purchaser of various drugs
from Darknet from other vendors and also charge of involving in
financing through different APPs and alleged to have involved in selling
of the drugs.
Similarly, the material in the complaint falls short of making out
offence under Section 29 of the NDPS Act.
18] In the wake of above, there do not exist any reasonable ground
for believing that the Applicants are guilty of the offence with which
they accused of as contemplated under Section 37 of the NDPS Act. In
any case, while considering the application for bail with reference of
Section 37 of the Act, the Court is not expected to pronounce finding of
not guilty, but it is merely finding to the extent of releasing the accused
on bail on being satisfied that there are reasonable grounds for
believing that he is not guilty.
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19] Mere CDR to which reference has been made in the complaint
by itself is not sufficient to infer the involvement of the Applicant with the
other co accused as an attempt is made to establish that Accused
No.1 was in touch with accused No.2.
The learned counsel Mr.Shirsat placed heavy reliance upon the
decision of the Hon'ble Apex Court in the case of NCB vs. Mohit
Aggarwal in Criminal Appeal Nos.1001-1002 of 2022, passed on
19.07.2022. But in my considered opinion, in the said decision, there
was other circumstantial evidence brought on record by the NCB, which
their Lordships of the Hon'ble Apex Court held ought to have dissuaded
the High Court from exercising its discretion in concluding that there
were reasonable grounds to justify that he was not guilty of the offence
under the NDPS Act.
20] Reliance is also placed by Mr.Shirsat on recent order of the
Hon'ble Apex Court in the case of Union of India (NCB) etc. vs. Khalil
Uddin Etc., where again attention of the Hon'ble Apex Court was invited
to the peculiar circumstances on record.
In the present case, no such independent incriminating
circumstance is compiled in the charge-sheet connecting the present
Applicants to the recovery of commercial quantity of contraband from
accused No.2.
I have already refused to entertain the Application of accused
No.2 seeking his release on bail.
21] As far as Applicant/accused No.4 is concerned, he came to be
arrested on the statement of co-accused and CDR. Even against him
the material on which reliance is placed is statement recorded under
Section 67 of the NDPS Act, which would make same fate as in the
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case of co-accused. Apart from this, the CDRs are much prior to the
date of commission of offence and there is no description of the call
details filed alongwith the charge-sheet and hence this persuade me to
believe that there is reasonable ground believing that the Applicant is
not guilty of commission of offence. Admittedly, there are certain
messages which are exchanged between the parties, but Mr.Shirsat
fairly states that they discussed Marijuana and Ganja and there is no
reference of LSD which is recovered from accused No.2 and for which
accused persons are charged of hatching a criminal conspiracy by
dealing with commercial quantity of the contraband in the form of LSD.
22] The investigation being complete and entire material compiled in
the charge-sheet, and no antecedents attributed to the Applicants or
apprehension expressed by the NCB that the Applicants are flight risk,
they deserve to be released on bail.
23] In the wake of above, since the material in the form of complaint,
prima facie is not sufficient to detain the Applicants while they await
their trial, I deem it appropriate to secure their liberty, which shall be
subject to certain conditions.
24] The observations made above are prima facie in nature and
limited for the purpose of determination of the present Application and
the learned Judge trying the Applicant for the offences, with which he is
charged, shall not in any manner be influenced by the above order.
Hence, the following order :
ORDER
(a) Applications are allowed.
(b) Applicants - Zaid Javed Petiwala and Shaikh Faiz
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Nawaz @ Sonu shall be released on bail in connection with F. No.NCB/BZU/CR-35/2021 pending as NDPS Special Case No.1231/2021, on furnishing P.R. bond to the extent of Rs.50,000/- with one or more sureties of the like amount.
The Applicants shall be released on cash bail of Rs.50,000/- for a period of six weeks in lieu of sureties. During the said period the applicants shall arrange for the sureties.
(c) The Applicants shall surrender their Passports, if they possess, before the Investigating Officer.
(d) The applicants shall report to the NCB on first Monday of every month between 03.00 p.m. to 05.00 p.m.
(e) The applicants 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 and should not tamper with evidence.
(f) The Applicants shall regularly attend trial, on every date, unless exempted.
(g) Upon release, the Applicants shall furnish their contact numbers and permanent residential addresses to the Investigating Officer and shall keep him updated in case of change in the same.
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