Bombay High Court
Jahirabi Shafikhan Pathan vs State Of Maharashtra on 19 December, 2022
Author: Prakash D. Naik
Bench: Prakash D. Naik
BA-2785-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 2785 OF 2022
Jahirabi Shafikhan Pathan ...Applicant
Versus
State Of Maharashtra ...Respondent
....
Mr. Aniket Vagal, Advocate for the Applicant.
Mr. A. A. Palkar, APP for the Respondent - State.
Mr. Satish B. Raut, Daund Police Station, Pune Rural, Present.
CORAM : PRAKASH D. NAIK, J.
DATE OF RESERVING ORDER : 20th OCTOBER, 2022.
DATE OF PRONOUNCEMENT OF ORDER : 19th DECEMBER, 2022
PER COURT:
Digitally 1. The applicant is seeking Bail in C.R. No. 435 of 2019
signed by
KAWRE KAWRE
KIRAN
KIRAN KALYAN registered with Daund Police Station, for the offences punishable
Date:
KALYAN 2022.12.19
18:47:29
+0530 under Sections 8(c), 20(b)II(b) read with Section 29 of the
Narcotic Drugs and Psychotropic Substances ( for short 'NDPS') Act.
2. The prosecution case is as under:-
On 4th August, 2019 the complainant Pandit Sampat Manjre
Police Head Constable attached to Daund Police Station and others
were on petrolling duty at Pune-Solapur Highway. At about 10.00
a.m. they saw Mahindra Veriot Car bearing No. MH-12-GZ-1076
halted for removing puncture. They went near the car and found
that two male persons and one female with the small child were
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occupying the car. While they inquired with the occupants of car,
the male persons were found nervous and they ran away from the
spot. The complainant and his associates suspected foul play. They
searched the vehicle. They opened the dickey of car. They found
some packets in the car. There was strong smell to the contents of
packets. They tried to search persons who ran away from the spot.
They could not succeed. Information was given to the higher
officers. The Police inquired with the women sitting in the car. She
gave her name as Joharabai Shafikhan Pathan. She gave name of
one person amongst the two who ran away from the spot as Raju
Pawar. She was informed that there is Ganja in the vehicle and she
is required to be searched. She was also asked whether she intends
to allow her search in the presence of any Gazetted Officer or
Magistrate. It is her right to do so and that if she wants to be
searched in the presence of such officers, the required arrangement
would be made. She consented for conducting the search by Police.
In the search, the Police recovered twenty four packets of Green
leaves, tops, seeds etc. The weight of contraband was 118 kg, and
300 grams samples were obtained. It was ganja FIR was registered.
The applicant was arrested. She was produced before the Court for
remand. She was remanded to custody. While she was produced
before the Court on 5th August, 2019 her Police custody was sought
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for investigation to find out from where she brought the Ganja and
whether the Ganja was taken for sale. Whether any other persons
were involved in the crime. Whether the applicant is involved in
trafficking of Narcotics substance. The applicant was remanded to
Police custody till 9th August, 2019. The case diary of investigation
was produced before the court. Subsequently investigation was
completed and charge-sheet was filed.
3. The applicant preferred an application for Bail before the
Court of Sessions at Baramati, Pune, the application was rejected
by order dated 14th January, 2020.
4. Learned Advocate for the applicant submitted as under:-
i. The applicant has no connection with the contraband.
ii. The applicant had no knowledge of contraband, kept in the
dickey of car.
iii. The application was not in conscious possession of Ganja
found in the car.
iv. The investigation could not reveal the involvement of the
applicant with the co-accused.
v. The applicant was allegedly found in the car with a child.
vi. The applicant was surprised with the raid. The other persons
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ran away
vii. The applicant is in custody since last three years.
viii. The applicant is suffering from various ailments.
xi. She is aged around sixty years. She is the case of P.L. HIV
since nine years. She is under going treatment for HIV, anorexia,
fatigue and severe anaemia. She was admitted in Sasoon General
Hospital, Pune from 12th August, 2021 to 21th August, 2021 for
treatment of anaemia. She was diagnosed to be suffering from
Pulmonary Tuberculosis. Her CT scan of Chest (Thorax) showed
multiple consolidation and fibro chamical changes most likely of
tubercular. She was given Anti Tuerculosis treatment at Sasoon
General Hospital, Pune. On 24th September, 2021 and 21st October,
2021 for similar complaints of Severe anaemia, chest pain and
breathlessness. She was given treatment for her complaints and
advice to continue the Anti Tuberculosis and ATR treatment.
Reliance is placed on the medical case papers including the medical
report date 26th October, 2021 issued by Chief Medical officer
Yerwada central prison, Pune.
5. Learned APP submits that the offence is of serious nature.
The applicant was found in the car. Ganja was recovered from the
car. The applicant was in conscious possession of Ganja. The
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ground urged by the applicant cannot be considered for granting
bail. The defence will have to be proved in trial. Reliance is placed
on the decision of the Supreme Court in the case of Union of India
through Narcotics Control bureau Lucknow Vs. Md. Navaz Khan
(2021)10 SCC Page 100.
6. The charge-sheet indicates that, the complainant and others
were on petrolling duty. The vehicle in question was found halted.
The work relating to puncture of tyre was conducted by the
inmates of car. There were three persons in the car. Applicant was
allegedly sitting in the car alongwith a small child. The Police had
questioned the occupants of car. The demeanour of two other
persons was suspicious. They were nervous. They ran away from
spot and disappeared. They could not be traced. The applicant
continued to occupy the car with her small child. The complaint or
statement of witnesses does not indicates that she was nervous or
showed any signs of being partner in crime with other persons. The
Police could not manage to apprehend the two other persons. There
was no attempt by the applicant to run away from the spot. It is not
the case of the prosecution that she had shown the contraband
lying in the dickey of the car. The entire charge-sheet does not
indicate that the applicant had a knowledge that there was a
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contraband in the car. The applicant was arrested and she was
produced before the Court for remand. The charge-sheet does not
indicate that, the investigation revealed that the applicant was
carrying the contraband or was involved in carrying the contraband
in connivance with the other persons. It was a case of chance
recovery. She is in custody since last three years. In the case of
Union of India Vs. Md. Navaz Khan (Supra), relied upon by learned
APP, it was observed that, the High Court ought not to have granted
bail to the accused, on the ground of absence of recovery of the
contraband from his possession. In the car in which accused were
travelling, heroin was found. The Court has dealt with the
conscious possession and referred to previous decision dealing with
the issue of conscious possession. The facts of the said case could
be distinguished. The factual matrix of the said case indicate that,
the Narcotic Control Bureau had received information that three
persons are proceeding with heroin / morphine in car. There was
CDR on record which showed link between all the accused. Hence
apex Court had observed that it cannot be accepted that accused
was not in conscious possession of contraband. In the present case
it was a chance recovery. There was no information that the
applicant was to travel with the other accused with contraband.
The apex court referred to earlier decision in the case of Dharampal
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Singh Vs. State of Punjab (2010) 9 SCC 608 wherein it was
observed that knowledge of possession of contraband has to be
gleaned from the facts and circumstances of the case. The Apex
Court also referred to the decision in the case of Mohan Lal Vs.
State of Rajasthan (2015) 6 SCC 222, in which case it was observed
that the term "possession" could mean physical possession with
animus custody over the prohibited substances with animus,
exercise of dominion and control as a result of concealment or
personal knowledge as to the existence of contraband and the
intention based on his knowledge.
7. In the present case for the reasons stated herein above, the
restrictions under Section 37 could not be impediment to grant bail
to the applicant.
ORDER
i. Criminal Bail Application No.2785 of 2022 is allowed.
ii. The applicant is directed to be released on bail in connection with C. R. No.435 of 2019 registered with Daund Police Station, on executing P. R. bond in the sum of Rs.25,000/- with one or more sureties in the like amount;
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iii. The applicant shall report concern Police
Station once in a month on 1st Saturday in between 11.00 a.m. to 1.00 p.m. for a period of six months and thereafter once in three months on 1st Saturday between 11.00 a.m. to 1.00 p.m. till further order;
iv. The applicant shall not tamper with the evidence. The applicant shall attend the trial Court on the date of hearing of the case unless exempted by the Court.
v. The observations made in this Order are prima facie for considering application for bale and the trial Court shall not be influenced by the same during trial.
vi. Application stand disposed off.
(PRAKASH D. NAIK, J.)
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