Bombay High Court
Abdel Basit Parihar vs Union Of India And Anr on 7 October, 2020
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
1 1-BA-st-2184-2020
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION [STAMP] NO.2184 OF 2020
Abdel Basit Parihar, ]
Age 23 years, R/o. 159, ]
Flat No. C-8, Ashirwad Apartment, ]
S.V. Road, Bandra (W), Mumbai 50 ] .... Applicant
Versus
1. Union of India, ]
Through Intelligence Officer, ]
Narcotics Control Bureau, ]
Mumbai Zonal Unit, ]
Mumbai. ]
2. State of Maharashtra. ] ..Respondents
-----
Mr. Taraq Sayed a/w. Advait Tamhankar, Advocate for the
Applicant.
Mr. Anil C. Singh, Additional Solicitor General a/w. Sandesh Patil,
Shreeram Shirsat, D.P. Singh, Amogh Singh, Aditya Thakkar, Pavan
Patil, Ms.Apurva Gupte, Chintan Shah, Mayur Jaisingh, for
Respondent No.1 - NCB
Mr. Swapnil S. Pednekar, APP, for Respondent No.2 - State.
-----
CORAM : SARANG V. KOTWAL, J.
RESERVED ON : 29.09.2020
PRONOUNCED ON : 07.10.2020
1 / 20
2 1-BA-st-2184-2020
ORDER:
1. This is an application for bail preferred by the Applicant in connection with C.R. No.16/2020 registered with the Narcotics Control Bureau, Mumbai (hereinafter referred to as "NCB") for the offences punishable under Sections 8(c) read with 20(b)(ii), 22, 27A, 28, 29 and 30 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act"). The Applicant was arrested on 3.9.2020.
2. I have heard this application along with Bail Applications (Stamp) No.2201/2020, 2205/2020, 2386/2020 and 2387/2020.
3. I have heard Mr. Taraq Sayed, learned Counsel for the Applicant and Mr. Anil C. Singh, learned Additional Solicitor General for Respondent No.1.
BRIEF FACTS AND CASE OF THE INVESTIGATING AGENCY
4. The allegations against the present Applicant, according to the investigating agency's case are set out in the affidavit-in- reply dated 28.9.2020 filed on behalf of Respondent No.1. Investigating agency's case based on this affidavit-in-reply and other companion affidavits, is as follows. 2 / 20
3 1-BA-st-2184-2020
a) On 28.08.2020, acting on a secret information, a team of NCB apprehended one Abbas Ramzan Ali Lakhani possessing 46 grams of Mariguana/Ganja at Old Kurla Gaon. Abbas told the team that he had purchased the drug from one Karn Arora, resident of Powai. On this basis, Karn Arora was apprehended and 13 grams of Ganja was recovered from his possession. Both of them were arrested.
b) Based on the disclosures made by Abbas Lakhani and Karn Arora, premises of one Zaid Vilatra was searched. Indian currency of Rs.9,55,750/- and foreign
currency of 2081 Us Dollars, 180 UK Pounds and UAE 15 Dirhams was seized under panchanama dated 1.9.2020. Zaid Vilatra's statement was recorded. Zaid Vilatra disclosed that the seized amount was the sale proceeds of the contraband and that he had supplied Marijuna, Ganja, Bud and psychotropic substances to many persons. Zaid Vilatra disclosed few names with their details. In Zaid Vilatra's voluntary statement, name of the present Applicant as a receiver of Ganja/Marijuana, was revealed.
3 / 20
4 1-BA-st-2184-2020
c) In his statement, the Applicant stated that he used to procure drugs from Zaid Vilatra and Kaizan Ebrahim as per instructions of Showik Chakarborty and used to direct them to supply those drugs to Samuel Miranda. He facilitated and arranged for supply of drugs and that he was in contact with Showik Chakarborty.
d) The investigation has further revealed that the Applicant used to pay and receive money via Google pay account. The Applicant has given names of many persons with whom he was dealing in drugs.
e) According to the investigating agency, the Applicant is part of a drug syndicate. His name was disclosed by Zaid Vilatra. According to Zaid, the Applicant was receiver of Ganja/Marijuna and was a conduit between the sellers Zaid, Kaizan on one hand and the purchasers Showik and Samuel Miranda on the other. The Applicant had also given name of Kaizan from whom 0.5 grams of dark brown substance purported to be Charas was recovered.
f) It is the NCB's case that there were instances where the Applicant had facilitated procurement of drugs and was in contact 4 / 20 5 1-BA-st-2184-2020 with Showik Chakraborty. In March 2020, Showik had asked the Applicant for contact number of a Ganja dealer and the applicant had given him Zaid Vilatra's number. In April 2020, the Applicant gave him the contact number of Kaizan Ebrahim as a supplier of Charas/Hashish.
g) According to the NCB, the Applicant in his statement has admitted that he had sent a text message to Kaizan on 15.4.2020 asking for Ganja. On 17.4.2020, the Applicant had sent another message asking for Hashish for Showik.
h) The applicant in his statement has admitted that he was instrumental in another deal on 28.4.2020 for purchase of Hashish worth Rs.7,000/-.
i) The affidavit-in-reply further mentions that co-accused Kaizan has named one Anuj Keshwani from whom 585 grams of Charas, 270.12 grams of Ganja, 3.6 grams of THC and 0.62 grams (0.1 gram was commercial quantity) of LSD; apart from cash of Rs.1,85,200/- were recovered. The accused Kaizan is connected with the present Applicant. Kaizan, in turn, is connected with Anuj Keshwani; and hence, according to NCB, the Applicant was an 5 / 20 6 1-BA-st-2184-2020 important link in the chain.
j) The affidavit further mentions that the Applicant was connected with another accused Suryadeep Malhotra who had introduced the Applicant to Showik Chakraborty.
5. Based on these allegations and material, NCB has stated in their affidavit that there was sufficient material against the present Applicant to show that he has acted as a facilitator for delivery of drugs, he was a party to the conspiracy having full knowledge and he was actively involved in illicit trafficking of drugs. The Applicant is one of the strong links in the entire chain. He was dealing in drugs and has connections with other co- accused. It is mentioned that if he was released on bail at this crucial stage of investigation, it would hamper further investigation.
6. It was submitted by the learned Counsel for the Applicant that the Applicant's statement was allegedly recorded on 2.9.2020. It was retracted on 3.9.2020.
7. The Applicant had preferred Criminal Bail Application No.1850/2020 before the Special Court for NDPS at Greater 6 / 20 7 1-BA-st-2184-2020 Mumbai for his release on bail. This Application was rejected by the learned Special Judge vide his order dated 11.9.2020. The learned Special Judge under the NDPS Act has held that, at this stage, Applicant's connection with the offence is established on the basis of statements of accused persons themselves. The effect of retraction of these statements could not be considered at this stage. Substantial quantity of contraband including commercial quantity of LSD was recovered from co-accused Anuj Keswani. He was a conspirator along with others, and, therefore, bar under Section 37 would apply. On these reasons, his bail application was rejected.
8. In this background, the Applicant has approached this Court for his release on bail.
SUBMISSIONS ON BEHALF OF THE APPLICANT
9. Mr. Taraq Sayed, learned Counsel appearing for the Applicant submitted that there was no recovery from any persons mentioned by the Applicant except Kaizan, and it was not of a commercial quantity of contraband.
7 / 20
8 1-BA-st-2184-2020
10. According to Mr. Sayed the conspiracy ended when the act was committed. Any act committed afterwards will not attract Section 29 of the NDPS Act. As Sushant Singh Rajput expired on 14.6.2020, the recoveries effected after that, from any accused, will not have any bearing on the case. Such recoveries cannot be held adversely against the present Applicant. At the highest, the allegations are that the Applicant facilitated in consumption of drugs; and in that case his liability cannot be higher than the principal offence by applying Section 29 of the NDPS Act.
11. According to Mr. Sayed the maximum punishment for the offence punishable under Section 27 was one year. And, therefore, the Applicant can not be more severely sentenced by invoking other Sections of the Act. He submitted that the offences against the Applicant mentions Section 8(c) read with Section 20(b)(ii). However, the categories of sub-clauses (A), (B) or (C) is not mentioned and, therefore, at this stage, it cannot be said that the investigating agency was justified in applying the penal Sections involving commercial quantity.
8 / 20
9 1-BA-st-2184-2020
12. According to Mr. Sayed, rigours of Section 37 will not apply. He submitted that the statement recorded under Section 67 of the NDPS Act can only be used as a corroborative piece of evidence if there was recovery. In this case, there was no recovery and, therefore, the Applicant's statement under Section 67 and all other statements of other accused lose their significance. From the allegations of the prosecution, it cannot be said that the Applicant was part of any drug syndicate. The Applicant is from a decent family, and is a student. When the contraband was delivered to Sushant Singh Rajput, the Applicant's role had ended. He submitted that Section 27A is not applied at the time of obtaining remand of the Applicant or even at the stage of filing reply opposing his bail application before the Special Judge.
13. Mr. Sayed relied on the judgment of a Single Judge of High Court of Kerala in the case of K.K. Ashraf s/o Muhammed K.K.1 to contend that Section 27A will not be attracted in this case as the Applicant cannot be said to have financed any activity or to have harboured any other accused. He submitted that nothing can be proved against the present Applicant.
1 Decided on 13.10.2009 in Bail Application No.5251/2009 [Kerala High Court]. 9 / 20
10 1-BA-st-2184-2020 SUBMISSIONS ON BEHALF OF INVESTIGATING AGENCY/RESPONDENT NO.1
14. As against the arguments advanced by Mr. Sayed, learned ASG made his submissions on facts based on the affidavit filed on behalf of Respondent No.1. He relied on the facts mentioned in the affidavit, which are reproduced hereinabove, to contend that all the serious offences are made out against the present Applicant and, therefore, he is not entitled to be released on bail.
15. Learned ASG submitted that there is sufficient material against the present Applicant. Co-accused Zaid Vilatra disclosed the Applicant's name as receiver of Ganja. His own voluntary statement also reveals instances of sale and purchase of Ganja. The Applicant used to procure drugs from Zaid and Kaizan as per the instructions of other accused and was directing them to deliver the contraband to Dipesh Sawant. The investigating agency has sufficient material to show the instances where this Applicant facilitated such dealings. The Applicant used to pay and receive money by cash or through GooglePay account. He disclosed the name of Kaizan. The Applicant was part of a chain which 10 / 20 11 1-BA-st-2184-2020 ultimately led to recovery of commercial quantity of contraband from one Anuj Keshwani.
REASONING
16. I have decided certain legal issues which are arising in this group of applications. Reference can be made to the order passed in Criminal Bail Application (Stamp) No.2386/2020. I have held that all the offences under the NDPS Act are non-bailable. I have also explained under what circumstances, Section 27A of NDPS Act is applicable.
17. Therefore, now, it is ncessary for the Applicant, firstly, to show that the rigours of Section 37 do not apply in his case; and, secondly, if such regours are not applicable though the offences are non-bailable, this Court should exercise its discretion in granting bail.
18. The main allegations against the Applicant are regarding conspiracy and abetment. Section 29 of NDPS Act reads thus:
"29. Punishment for abetment and criminal conspiracy -
(1) Whoever abets, or is a party to a criminal conspiracy to commit an offence punishable under this Chapter, shall, whether such offence be or be 11 / 20 12 1-BA-st-2184-2020 not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence.
(2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which--
(a) would constitute an offence if committed within India; or
(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India."
19. Reading Section 8(c) with Section 29 of NDPS Act, it can be seen that the list of activities brought under provisions of these Sections is quite exhaustive. In the present case, as submitted by the learned ASG, the Applicant appears to be a part of a chain. He was knowing other dealers and he was facilitating in supply of drugs either procured from these dealers directly or he was giving their contacts to the consumers. He was directly connected with 12 / 20 13 1-BA-st-2184-2020 drug dealers Zaid, Kaizan and Suryadeep. His role is serious. There is considerable force in the submission of the learned ASG that the recovery of commercial quantity of contraband from Anuj Keshwani was a result of investigation and interrogation carried out in respect of different accused including the present Applicant. One name after another was revealed during such interrogation. These dealers form a definite chain. The NDPS Act is aimed to stop such illicit traffic. The ultimate consumers are treated differently depending on the classification of offences involving commercial or non-commercial quantities. However, for the persons who are in actual trade of the illicit trafficking of drugs, the situation is different. They will have to be treated differently. Drug dealers are instrumental in spreading drug abuse. Therefore, their activities will have to be treated differently from those of the consumers or end users. However, at this point of time, I am not making any further observations in the case of the Applicant because the investigation is still in progress. Any further observation will cause prejudice to the Applicant as well as the investigating agency at every stage. It is sufficient to mention that the Applicant is linked with Anuj Keshwani from whom commercial 13 / 20 14 1-BA-st-2184-2020 quantity of LSD was seized. Though the Applicant has not given his name directly, he had named Kaizan, who had named Anuj. Thus, there is a chain.
20. Mr. Sayed submitted that the only evidence against the present Applicant is in the form of the statement recorded under Section 67 and if the investigating agency is allowed to investigate only on such basis it will cause serious prejudice in many cases.
21. The learned ASG submitted that voluntariness or otherwise of a statement recorded under Section 67 and effect of its retraction cannot be decided at this stage. In this connection, the observations of the Hon'ble Supreme Court in the case of Union of India Vs. Shiv Shanker Kesari2 is important. In that case, in Paragraph-13, it was observed thus :
"13. In the instant case, it appears that there was a statement recorded under Section 67 of the Act. The respondent has taken a stand that the same was under coercion. The acceptability of such a stand is a matter of trial. Additionally, the High Court has not indicated any reason as to why it was of the view that the contraband articles were not seized from the exclusive possession of the accused-respondent."
2 (2007) 7 SCC 798 14 / 20 15 1-BA-st-2184-2020 . Thus, these observations show that the effect of such statements and their retraction is a matter of trial.
22. Mr. Sayed submitted that recording of statement under Section 67 and arrest of the accused on that basis shows misuse of power by the investigating agency. To counter this argument, the learned ASG relied on the judgment of Single Judge of this Court in the case of M.D. Kale, Intelligence Officer, Narcotic Control Bureau, Bombay Vs. Mohd. Afzal Mohd. Yarkhan and another 3 In Paragraph-10 of said judgment, the Court has observed that merely because the statement has been subsequently retracted did not mean that it can be discarded at the stage of bail itself. A retracted statement did not lose its evidentiary value. In any case, at the stage of consideration of application for bail, the Court would not be justified in holding mini trial to decide as to whether or not retracted statement was voluntary.
23. Mr. Sayed further submitted that there was no recovery from the Applicant or from the house of Sushant Singh Rajput and this is an important circumstance in his favour. The learned ASG 3 1998(2) Mh.L.J. 779 15 / 20 16 1-BA-st-2184-2020 submitted that the recovery of the contraband from the accused is not an absolute necessity for prosecuting and punishing him.
24. The Hon'ble Supreme Court in the case of Union of India Vs. Rattan Mallik alias Habul 4 has discussed this issue. Paragraphs-15 and 16 in that behalf are important. They are as follows:
"15. Bearing in mind the above broad principles, we may now consider the merits of the present appeal. It is evident from the afore-extracted paragraph that the circumstances which have weighed with the learned Judge to conclude that it was a fit case for grant of bail are: (i) that nothing has been found from the possession of the respondent; (ii) he is in jail for the last three years, and (iii) that there is no chance of his appeal being heard within a period of seven years. In our opinion, the stated circumstances may be relevant for grant of bail in matters arising out of conviction under the Penal Code, 1860, etc. but are not sufficient to satisfy the mandatory requirements as stipulated in clause (b) of sub- section (1) of Section 37 of the NDPS Act.
16. Merely because, according to the learned Judge, nothing was found from the possession of the respondent, it could not be said at this stage that the respondent was not guilty of the offences for which he had been charged and convicted. We find no substance in the argument of learned counsel for the respondent that the observation of the learned Judge to the effect that "nothing has 4 (2009) 2 SCC 624 16 / 20 17 1-BA-st-2184-2020 been found from his possession" by itself shows application of mind by the learned Judge tantamounting to "satisfaction" within the meaning of the said provision. It seems that the provisions of the NDPS Act and more particularly Section 37 were not brought to the notice of the learned Judge."
25. There would be a case when the dealer may not have any contraband in is actual possession, but, he may facilitate the transaction between the two parties. Even in that case, he can be prosecuted under the NDPS Act. Mr. Sayed has emphasized on the fact that nothing was found from Sushant Singh Rajput's house and as per the prosecution case the contraband procured through the Applicant was already consumed and, therefore, there was no possibility of recovery of any contraband. If there are other strong circumstances and material against the accused in such cases, absence of recovery may not be the only consideration for decision in such cases. This will depend on facts and circumstances of each case. In the present case against the Applicant the allegations are not only restricted to delivery of drugs to Sushant Singh Rajput which were allegedly consumed by him, but, the allegations are that the Applicant is a part of a chain of drug dealers and one of the dealers was found with contraband of commercial quantity. 17 / 20
18 1-BA-st-2184-2020 Therefore, at this stage, it is not possible to record the satisfaction required to be recorded under Section 37 of the NDPS Act. It is not possible to observe, at this stage, that the Applicant has not committed any offence, involving commercial quantity. It is also not possible to record a satisfaction that the Applicant is not likely to commit those offences in future in view of the allegations against him. Even otherwise, since the offence is non-bailable, I am not inclined to exercise my discretion in granting bail to the Applicant, at this stage. The investigation is still in progress. Subsequent to the arrest of the present Applicant, many other arrests were effected. Release of the Applicant, at this stage, would definitely hamper the investigation.
26. At this stage, though the learned ASG has also argued that Section 27A will apply against the present Applicant, I do not feel it necessary to decide this issue at this stage, for the following reasons:
(i) Though the Court has wide powers to look at the entire material, the investigating agency did not deem it necessary to apply this Section in the remand report of the Applicant.18 / 20
19 1-BA-st-2184-2020
(ii) Secondly, at this stage, any observation made in this regard will seriously prejudice not only the Applicant, but, also the investigating agency. This is an application at a preliminary stage when the investigation is still going on. The Applicant does not have entire material which the investigating agency has collected against him. Therefore, the Applicant is not in a position to defend himself effectively at this stage in respect of these allegations. Any such observation will also cause prejudice to the investigating agency because they are entitled to keep the material collected during the investigation confidential otherwise it may hamper their investigation. Therefore, this issue can be addressed after the investigation is over.
(iii) In any case, in view of the reasons mentioned in this order for deciding this application, I do not deem it necessary at this stage to decide this issue in respect of the Applicant's case.
27. Having said this, the Applicant will have a right to apply again for bail after the investigation is over. Therefore, I am not making any further observation to prejudice his case at a future 19 / 20 20 1-BA-st-2184-2020 stage. The observations made in this order on factual aspects are limited to the decision of this application. After completion of investigation, the Applicant is at liberty to approach the Special Court under NDPS Act for Greater Mumbai for his release on bail; and if such an application is preferred, it shall be decided on its own merits and in accordance with law, without being influenced by this order.
28. Considering all these aspects, I am not inclined to pass order directing Applicant's release on bail. The application is rejected.
29. This order shall be digitally signed by the Private Secretary of this Court. All concerned shall act on production by fax or email of a digitally signed copy of this order. Digitally signed by Pradeepkumar Pradeepkumar P. Deshmane P. Deshmane Date:
2020.10.07 12:15:01 +0530 (SARANG V. KOTWAL, J.) Deshmane (PS) 20 / 20