Bombay High Court
Savitri Periswami Devendra vs The State Of Maharashtra on 22 December, 2020
Equivalent citations: AIRONLINE 2020 BOM 3006
Author: Bharati Dangre
Bench: Bharati Dangre
1/11 ABAST-3735-20.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL ANTICIPATORY BAIL APPLICATION (ST) NO.3735 OF 2020
Smt.Savitri Periswami Devendra .. Applicant
Versus
The State of Maharashtra .. Respondent
...
Mr.Ayaz Khan i/b Ms.Zehra Charania for the Applicant.
Mr.S.V.Gavand, APP for the State.
CORAM : BHARATI DANGRE, J.
RESERVED ON : 8th DECEMBER, 2020
PRONOUNCED ON : 22nd DECEMBER, 2020
: ORDER :
1. The applicant is apprehending her arrest in C.R.No.348 of 2019 registered with Kothrud Police Station, Pune City, thereby invoking Section 8(c), 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "NDPS Act").
2. The submission advanced on behalf of the applicant is to the effect that she is not named in the FIR and it is only on the basis of the statement of the co-accused, she is sought to be implicated. It is submitted that there is no recovery of any contraband from her and in fact, the contraband being already recovered from accused Nos.1 and 2 and on investigation of the C.R., the charge-sheet has been filed and the case has culminated into NDPS Case No.372 of 2020. The counsel for M.M.Salgaonkar ::: Uploaded on - 23/12/2020 ::: Downloaded on - 10/02/2021 16:36:50 ::: 2/11 ABAST-3735-20.doc the applicant has relied upon several precedents to submit that the statement of the co-accused, in absence of any independent material, is not sufficient to indict his client. She is a lady aged 63 years and recently operated for cataract and her medical condition do not warrant her custodial interrogation in absence of any clinching material contained in the charge-sheet against the present applicant. It is argued that she is entitled for protection in the event of her arrest on account of her false implication and in the backdrop of the fact that the material relied against her is inadmissible in law.
3. Per contra, the learned APP Mr.Gavand would submit that the contraband of commercial quantity has been recovered from the two arrested accused in the said C.R. and the samples drawn, when examined, reveal it to be heroin and the seizure from them was of commercial quantity. The applicant is named by the two accused persons as the kingpin of the racket, who had made over the contraband to them to be taken to Pune, for which consideration was promised and, therefore, according to Mr.Gavand, custodial interrogation of the applicant is very much necessary. He would also place heavy reliance on the externment order passed by the Deputy Commissioner of Police, Zone IV, Mumbai under Section 55(1) of the Maharashtra Police Act, 1951, which according to Mr.Gavand is reflective of the precursor of the present applicant and, particularly, her involvement in the offences under the NDPS Act. He submit M.M.Salgaonkar ::: Uploaded on - 23/12/2020 ::: Downloaded on - 10/02/2021 16:36:50 ::: 3/11 ABAST-3735-20.doc that by invoking the power conferred under Section 55 of the Maharashtra Police Act, the competent officer in order to prevent the violence and alarm or disperse the movement of any gang in the area, which is likely to cause danger or alarm by the unlawful designs, has passed an order directing removal of the persons outside the area within the local limits of his jurisdiction. The said order passed against the present applicant is cited as sufficient ground by Mr.Gavand to justify the custodial interrogation of the applicant in the present C.R. Apart from this, it is sought to be submitted that the applicant is absconding since the date of registration of crime and is evading her arrest on unsustainable ground stating that she was externed and, therefore, was not present in Mumbai, but had gone to her native place in Tamil Nadu.
Mr.Gavand also rely on the fact that the quantity of contraband seized from the accused Nos.1 and 2 in the said C.R. involves commercial quantity and worth Rs.77,03,500/- and on analysis, it is found to be heroin. Taking into consideration the said quantity, which justify charge under Sections 22 and 29 and on conviction will entail a penalty of rigorous imprisonment for a term which shall not be less than ten years, but which may extend to twenty years and is also liable to fine, which shall not be less than rupees one lakh, but may extend to rupees two lakh, Mr. Gavand submit that the offence has to be viewed from this angle and considering its gravity and the nature of penalty imposed on conviction, the M.M.Salgaonkar ::: Uploaded on - 23/12/2020 ::: Downloaded on - 10/02/2021 16:36:50 ::: 4/11 ABAST-3735-20.doc parameters for grant of anticipatory bail should be applied and relief be refused to the applicant.
4. The case of the prosecution is to the effect that on 15 th October, 2019, when a team of police officers were patrolling on account of upcoming Vidhan Sabha Election of 2019, with an object of maintaining law and order and, particularly, to control the use of weapons and sale of contraband etc., while approaching from Chandani Chowk to Kothrud, at around 12.30, one male person alongwith one female were found standing by the side of the road in suspicious manner. They were apprehended and when questioned, they gave their names as one Selvom Devendar and Vasanti Chinu Devendar, both residents of Sion Koliwada, Mumbai. They were found to be conversant with Hindi and Marathi language since they were residents of Mumbai for last thirty years. When subjected to search, after following the necessary procedure prescribed under the provisions of NDPS Act and after executing necessary documents, two transparent plastic packets containing contraband came to be seized. The search of accused No.1 led to recovery of 1 kg. of heroin whereas search of accused No.2 resulted into recovery of 540 gm of heroin. After following the necessary procedure, the samples were drawn and the packets were forwarded for chemical analysis. The report received from the Regional Forensic Science Laboratory, Pune analyse the said samples to be Diacetylmorphine (Heroin) alongwith M.M.Salgaonkar ::: Uploaded on - 23/12/2020 ::: Downloaded on - 10/02/2021 16:36:50 ::: 5/11 ABAST-3735-20.doc Alprazolom, Paracetamol, Caffein and 6-monoacetylmorphine. The samples are opined to contain 0.50% of heroin, which falls under Section 2 (xvi) e of NDPS Act, 1985.
5. As far as the applicant's stake in the said crime, it is the accused Nos.1 and 2, in their statement, disclosed that the contraband has been supplied to them by the present applicant. The argument of the learned counsel for the applicant is based on the judgment of the Hon'ble Apex Court in case of Surinder Kumar Khanna Vs. Intelligence Officer, Directorate of Revenue Intelligence (Criminal Appeal No.949 of 2018) wherein the confessional statement of the accused is held not by itself to be taken as substantive piece of evidence and it has been held that at best, it can be used or utilised in order to lend assurance to Court and in absence of any other substantive evidence to base a conviction, was held to be not justified and the appellant was held entitled for acquittal of the charges against him. The learned counsel for the applicant has placed reliance on various orders passed by the Bombay High Court wherein the applicants have been admitted to bail on the basis of the principle that the confessional statement of the co-accused is not admissible.
In order to take his submission further, the learned counsel has relied upon the judgment of the Hon'ble Apex Court in case of Vasanthi Vs State of A.P. (Criminal Appeal No.668669 of 2005), which is under the Andhra Pradesh M.M.Salgaonkar ::: Uploaded on - 23/12/2020 ::: Downloaded on - 10/02/2021 16:36:50 ::: 6/11 ABAST-3735-20.doc Control of Organised Crime Act, 2001 wherein their Lordships have held the applicant entitled for bail by holding that the duty of the Court at the stage of consideration of application for bail is not weighing the evidence meticulously, but to arrive at the finding on the basis of broad probabilities. By applying the said principle to the case in hand, it was held that when the confessional statement is left out of consideration, the material on record does not justify the conclusion at this stage that the appellant would indulge in similar offence of an organised crime, if released on bail. Being in prison for about 15 months, the appellant was held entitled for being released on bail.
6. Per contra, Mr.Gavand, the learned APP, has placed reliance on the judgment in case of Kalyan Chandra Sarkar Vs Rajesh Ranjan @ Pappu Yadav (2004 SCC(Cri) 1977) and a judgment in case of Muraleedharan Vs State of Kerala ( 2001 Cri.L.J.2187) to advance his submission that admissibility of the confessional statement and its effect cannot be ascertained at the stage of grant of anticipatory bail, but is a matter to be considered at the time of trial.
7. The judgments relied upon by the learned counsel for the applicant will have to be read in light of the facts that case where the only material was the confessional statement of the co-accused, their Lordships in case of Surinder Kumar Khanna (supra) were pleased to acquit the appellant, by recording that the issue whether the statement recorded under Section 67 of M.M.Salgaonkar ::: Uploaded on - 23/12/2020 ::: Downloaded on - 10/02/2021 16:36:50 ::: 7/11 ABAST-3735-20.doc the NDPS Act can be construed as a confessional statement even if the officer who recorded such statement was not to be treated as a police officer, has been referred to a larger Bench. Proceeding on a premise that such statement would amount to confession, it is held that certain other additional features must be established before the statement could be relied upon. In the case in hand, it was accepted by the prosecution that apart from the confessional statement, there was no material justifying the involvement of the appellant in the crime in question and the only piece of evidence was the statement of the co-accused. Apropos to mention that the said issue, which was pending for reference is answered by the Hon'ble Apex Court in case of Tofan Singh Vs State of Tamil Nadu on 29th October, 2020 in Criminal Appeal No.152 of 2013 and his Lordship Hon'ble Justice R.F.Nariman categorically answered the reference in following words:
"158. We answer the reference by stating :
(i) That the officers who are invested with powers under section 53 of the NDPS Act are "police officers" within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.
(ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trialof an offence under the NDPS Act."
M.M.Salgaonkar ::: Uploaded on - 23/12/2020 ::: Downloaded on - 10/02/2021 16:36:50 ::: 8/11 ABAST-3735-20.doc
8. The position of law has thus been crystallised to the aforesaid effect by their Lordships of the Hon'ble Apex Court. However, in the present case, apart from the confessional statement, gravity and seriousness of offence where commercial quantity of contraband has been seized from the co-accused coupled with the fact that the present applicant is part of the externment order passed on 23rd August, 2019 by the competent authority is an important aspect, which has a bearing on the present application. The order of externment, which has been compiled in the charge-sheet, name the applicant as gang leader, who alongwith five persons of her gang, have been externed for a period of one year from the city of Mumbai and Mumbai Suburban Districts. The said order makes reference to three offences registered against the applicant vide C.R.No.04 of 2011, C.R.No.288 of 2018 registered with Antop Hill Police Station and C.R.No.67 of 2019 registered with Wadala T.T. Police Station invoking Section 8(c) with Sections 21 and 29 of NDPS Act. As far as the offence registered with Antop Hill Police Station is concerned, Sessions Case No.17 of 2013 is awaiting trial and the two other offences, which were taken into account, were under investigation. As far as other gang members are concerned, they are co-accused in C.R.No.288 of 2018, which was pending investigation. The contraband involved in the said CR is also heroin, which was clandestinely traded. The order is based on two in-camera statements, which make reference to the applicant. By relying M.M.Salgaonkar ::: Uploaded on - 23/12/2020 ::: Downloaded on - 10/02/2021 16:36:50 ::: 9/11 ABAST-3735-20.doc upon the said antecedents and the in-camera statements, the applicant as a gang leader alongwith her gang, has been attributed act of selling heroin with an object of causing danger or alarm to the physical and mental wellness of the general public and the young generation by the unlawful design and of creating a reign of terror. The powers under Section 55 of the Maharashtra Police Act came to be exercised after affording necessary opportunity to the accused persons.
9. The learned counsel for the applicant has placed reliance on the order passed by the Divisional Commissioner, Kokan Division, by which the order of externment has been set aside while exercising the powers of Appellate Authority under Section 60 of the Maharashtra Police Act, 1951. Perusal of the said order would reveal that the impugned order of externment has been set aside on the ground that against the appellant, three offences have been relied upon and the first one is of the year 2011 and, therefore, the action of externment based on the offence of 2011, which is an old and stale case, is not justified since the live link, which is a necessary ingredient of Section 55, has been swapped. Another ground on which the impugned order is set aside is that the action under Section 55 was initiated only against the appellant and her co-accused in C.R.No.67 of 2019, was not subjected to such an action. The absence of live link may be a ground from setting aside an externment order as the Appellate Authority has recorded that M.M.Salgaonkar ::: Uploaded on - 23/12/2020 ::: Downloaded on - 10/02/2021 16:36:50 ::: 10/11 ABAST-3735-20.doc the action of externment is taken after expiry of a period of almost ten and half months after C.R.No.288 of 2018 was registered in respect of an incident dated 6th October, 2018. However, the antecedents of the applicant and her previous accusation in similar nature of offence are not obliterated.
10. It is settled that while considering an application for grant of bail, the following factors bear relevance :-
(i)Whether there is any prima facie or reasonable ground to believe that the accused has committed the offence;
(ii) Nature of gravity of the charge;
(iii) Severity of punishment in the event of conviction;
(iv) Danger of accused absconding or fleeing, if released on bail and
(v) Character, behaviour, means, position and standing of the accused and his antecedents.
The past offences registered against the applicant under the NDPS Act itself disentitle her for any protection. Apart from the gravity of the charge levelled against her, the apprehension that she will flee the course of justice is also cannot be said to be unfounded since the order of externment was set aside on 25th October, 2019 barely ten days from the date when accused Nos.1 and 2 were apprehended i.e. on 15th October, 2019. The apprehension expressed by the learned APP that every chances of the applicant being fleeing the course of justice cannot be M.M.Salgaonkar ::: Uploaded on - 23/12/2020 ::: Downloaded on - 10/02/2021 16:36:50 ::: 11/11 ABAST-3735-20.doc brushed aside lightly. Though the externment order has been set aside on 25th October, 2019, till date the whereabouts of the applicant are not known and the charge-sheet filed on 25 th March, 2020 mention her as 'wanted accused'. Though her anticipatory bail application came to be rejected by the Special Judge at Pune on 3rd August, 2020, without any protection, she has managed to stay away from the investigating agency.
11. The judgments relied upon by the learned counsel for the applicant are not of any succor to him, since the only material in the said judgments was the confessional statement of the co- accused recorded under Section 67 of the NDPS Act. While considering the application for anticipatory bail, the antecedents of the applicant will have to be given its due weightage and particularly when she is alleged to have been indulged in commercial quantity of heroin in past. The confessional statement is therefore not only the inculpatory material against her but her antecedents of indulging in narcotic drugs will pave her way to negation of any protection to her. Her custodial interrogation in the aforesaid backdrop is very much necessary and cannot be avoided.
The application is rejected.
SMT. BHARATI DANGRE, J M.M.Salgaonkar ::: Uploaded on - 23/12/2020 ::: Downloaded on - 10/02/2021 16:36:50 :::