Bombay High Court
Saddam Hussain Qureshi vs Union Of India And Anr on 17 April, 2024
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
2024:BHC-AS:17767 7-BA-2894-2023.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO.2894 OF 2023
Saddam Hussain Qureshi ...Applicant
Versus
Union of India & Anr. ...Respondents
Mr. Shreerat Kamath a/w. Ms. Puja Yadav, Advocates, for the
Applicant.
Ms. Ameeta Kuttikrishnan, Advocate, for the Respondent No.1-UOI.
Mr. Shriram S. Chaudhari, APP, for the Respondent No.2-State.
CORAM: MADHAV J. JAMDAR, J.
DATED : 17th APRIL 2024
P. C.:
1. Heard Mr. Kamath, learned Counsel for the Applicant and
Mr. Chaudhari, learned APP for the Respondent-State.
2. This regular Bail Application is preferred under Section 439
of the Code of Criminal Procedure, 1973. The relevant details are
as follows:-
1. C. R. No. NCB/MZU/CR-01/2023
2. Date of registration of F.I.R. 02/02/2023
3. Name of Police Station NCB, Mumbai Zonal Unit
4. Section/s invoked 8(c), 21(c), 22(c), 28 and 29
of the Narcotic Drugs and
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Psychotropic Substances Act,
1985 ("NDPS Act")
5. Date of incident 02/02/2023
6. Date of arrest 13/02/2023
7. Date of filing of Charge- July 2023
sheet
3. The prosecution case is set out in paragraph No.2 of the
Order dated 15th September 2023 passed by the learned Special
NDPS Judge, Panvel-Raigad below Exhibit-3 in Special NDPS Case
No.153 of 2023. The said paragraph No.2 reads as under:-
"2. Brief facts of the case are that a specific
information was received that by courier parcel of
Alprazolam tablets is lying at VRL Logistics
Kalamboli, and one person by name Santosh Yadao
was going to collect it. NCB Mumbai conducted
survey lance and intercepted the said person
alongwith seizure of 132000 tablets of Alprazolam
on 02/02/2023. Also 2400 bottles of Codeine based
Onerex cough syrup commercial quantity was also
seized. Accused No.1 was arrested on 03/02/2023.
notice was issued u/se. 67 of NDPS Act to the
present accused and co-accused No.3. Statements
were recorded, which disclosed involvement of the
all accused persons for the purpose of conspiracy,
procurement, possession, transportation and
trafficking of said seized contraband."
4. It is the submission of Mr. Kamath, learned Counsel for the
Applicant that the only role attributed to the present
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Applicant/Accused No.2 is that he was in contact with one Siraj
and that he was a dealer in Mumbai. It is alleged that there were
several calls exchanged between the Applicant and one Salman
alias Babu. It is the submission of Mr. Kamath, learned Counsel for
the Applicant that the Applicant was apprehended solely on the
basis of a statement by Accused No.1 recorded under Section 67 of
the NDPS Act. He submitted that there is no possession or recovery
of contraband at the instance of the Applicant. No monetary trail
or contact with Accused No.1 have been established. He submitted
that there is no direct evidence on record to link the Applicant with
the main or other Accused persons. He submitted that there is no
direct or indirect evidence on record against the Applicant to show
the actual or constructive possession over the contraband found in
possession of the Accused No.1. He submitted that the statement of
the Applicant recorded under Section 67 of the NDPS Act cannot
be held against the Applicant. He submitted that there are no
antecedents against the Applicant under the NDPS Act. He relied
on the decision of the Supreme Court of India in the case of
Narcotics Control Bureau v. Pallulabid Ahmad Arimutta.1
1 (2022) 12 SCC 633
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5. On the other hand, Ms. Kuttikrishnan, learned Counsel for
the Respondent No.1-Union strongly opposed the Bail Application.
She submitted that in the present case, 1,32,000 tablets of
Alprazolam and 3,840 bottles of CBCS have been seized, and that
these quantities are much larger than the commercial quantity as
specified under the NDPS Act. She submitted that Accused No.1
was intercepted and found in possession of the said contraband
and the same was to be delivered to one Salman Bhai. The present
Applicant was an associate of said Salman Bhai and was also
involved in selling and purchasing of Alprazolam tablets along
with CBCS bottles. She submitted that the statement of the
Applicant was recorded before the Investigating Officer under
Section 67 of the NDPS Act and the Applicant was immediately
arrested on 13th February 2023. She submitted that a voluntary
statement of the Applicant recorded under Section 67 of the NDPS
Act shows the involvement of the Applicant in the offence in
question. She therefore submitted that rigors of Section 37 of the
NDPS Act are applicable and therefore, the bail Application be
rejected.
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6. Mr. Chaudhari, learned APP for the Respondent No.2-State
adopted the submissions of Ms. Kuttikrishnan, learned Counsel for
the Respondent No.1-Union.
7. Section 37 of the NDPS Act is as follows:-
"37. Offences to be cognizable and non-bailable.--
(1) Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 of 1974),--
(a) every offence punishable under this Act shall be
cognizable;
(b) no person accused of an offence punishable for
offences under section 19 or section 24 or section
27-A and also for offences involving commercial
quantity shall be released on bail or on his own
bond unless--
(i) the Public Prosecutor has been given an
opportunity to oppose the application for such
release, and
(ii) where the Public Prosecutor opposes the
application, the court is satisfied that there are
reasonable grounds for believing that he is not
guilty of such offence and that he is not likely to
commit any offence while on bail.
(2) The limitations on granting of bail specified in
clause (b) of sub-section (1) are in addition to the
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limitations under the Code of Criminal Procedure,
1973 (2 of 1974) or any other law for the time
being in force on granting of bail."
(Emphasis added)
Thus, as per Section 37 of the NDPS Act, following requirements
are mandatorily to be complied with before releasing the Accused
on bail:-
(i) The Public Prosecutor is to be given an
opportunity to oppose the application seeking bail;
(ii) Where the Public Prosecutor opposes the
application:-
(a) The court is required to record
satisfication that there are reasonable grounds for
believing that the Applicant is not guilty of such
offence;
(b) The Court is requried to record
satisfaction that the Applicant is not likely to
commit any offence while on bail.
8. In the present case, Ms. Kuttikrishnan, learned Counsel for
the Respondent No.1-Union has filed an affidavit-in-reply dated
18th January 2024 of Mr. Satish Kumar, Intelligence Officer,
Narcotics Control Bureau (NCB), Mumbai and she has opposed the
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Bail Application by raising several contentions. Therefore, the first
requirement is complied with.
9. Thus, what is required to be considered is that whether this
Court is satisfied that there are reasonable grounds for believing
that he is not guilty of such offence and that he is not likely to
commit any offence while on bail.
10. Before considering the merits of the case, it is required to be
noted that the Supreme Court of India in case of Pallulabid Ahmad
Arimutta (supra) has held that confession/voluntary statement
recorded under Section 67 of the NDPS Act will remain
inadmissible in the trial of an offence under the NDPS Act and
therefore, arrest made on the basis of such inadmissible evidence
i.e. on the basis of confession/voluntary statement is not legal. The
relevant paragraph Nos.11 and 12 of Pallulabid Ahmad Arimutta
(supra) read as under:
"11. Having gone through the records along with the
tabulated statement of the respondents submitted on
behalf of the petitioner NCB and on carefully perusing
the impugned orders passed in each case, it emerges that
except for the voluntary statements of A-1 and A-2 in the
first case and that of the respondents themselves
recorded under Section 67 of the NDPS Act, it appears,
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prima facie, that no substantial material was available
with the prosecution at the time of arrest to connect the
respondents with the allegations levelled against them of
indulging in drug trafficking. It has not been denied by
the prosecution that except for the respondent in SLP
(Crl.) No. 1569 of 2021, none of the other respondents
were found to be in possession of commercial quantities
of psychotropic substances, as contemplated under the
NDPS Act.
12. It has been held in clear terms in Tofan Singh v. State
of T.N. [Tofan Singh v. State of T.N., (2021) 4 SCC 1 :
(2021) 2 SCC (Cri) 246] , that a confessional statement
recorded under Section 67 of the NDPS Act will remain
inadmissible in the trial of an offence under the NDPS
Act. In the teeth of the aforesaid decision, the arrests
made by the petitioner NCB, on the basis of the
confession/voluntary statements of the respondents or
the co-accused under Section 67 of the NDPS Act, cannot
form the basis for overturning the impugned orders
releasing them on bail.
(Emphasis added)
11. In the present case, even as per the prosecution case, only
following two circumstances are incriminating as far as the
Applicant is concerned:-
(1) The Applicant was in direct contact with the
wanted Accused person namely Siraj.
(2) The Applicant has made a voluntary statement
under Section 67 of the NDPS Act.
12. Prima facie, there is substance in the contention of Mr.
Kamath, learned Counsel for the Applicant that the above two
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circumstances do not connect the Applicant with the offence in
question. The role of wanted Accused person Siraj is not clear.
Voluntary statement of Applicant recorded under Section 67 of the
NDPS Act is not admissible.
13. It is also required to be noted that there is no possession or
recovery of contraband at the instance of the Applicant and that
Accused No.1 was intercepted and found in possession of the
contraband in question.
14. Thus, there are reasonable grounds for believing that the
Applicant is not involved in the said offence.
15. Mr. Kamath, learned Counsel for the Applicant submitted
that there are no other antecedents under the NDPS Act. There is
one antecedent bearing C.R. No.431 of 2022 registered with
Shivaji Nagar Police Station, Mumbai under Section 307, 323, 504,
506 read with 34 of the Indian Penal Code, 1860. However, on the
basis of that, it cannot be said that the Applicant is likely to
commit an offence under the NDPS Act. The Applicant does not
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have any criminal antecedents under the NDPS Act. Thus, the
second requirement is also fulfilled.
16. The Applicant does not appear to be at risk of flight.
17. Accordingly, the Applicant can be enlarged on bail by
imposing conditions.
18. In view thereof, the following order:-
ORDER
(a) The Applicant - Saddam Hussain Qureshi be released on bail in connection with C.R. No.NCB/MZU/CR- 01/2023 registered with Narcotics Control Bureau (NCB), Mumbai on his furnishing P.R. Bond of Rs.1,00,000/- with one or two local solvent sureties in the like amount.
(b) On being released on bail, the Applicant shall furnish his cell phone number and residential address to the Investigating Officer and shall keep the same updated, Page 10 of 12 Sonali ::: Uploaded on - 17/04/2024 ::: Downloaded on - 19/04/2024 07:40:37 ::: 7-BA-2894-2023.DOC in case of any change thereto.
(c) The Applicant shall report to the Narcotics Control Bureau (NCB), Mumbai once a week on every Monday between 11:00 a.m. and 1:00 p.m. until the conclusion of the trial.
(d) The Applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case, so as to dissuade such a person from disclosing the facts to the Court or to any Police personnel.
(e) The Applicant shall not tamper with the prosecution evidence and shall not contact or influence the Complainant or any witness in any manner.
(f) The Applicant shall attend the trial regularly. The Applicant shall co-operate with the Trial Court and shall not seek unnecessary adjournments thereat.
(g) The Applicant shall surrender his passport, if any, to Page 11 of 12 Sonali ::: Uploaded on - 17/04/2024 ::: Downloaded on - 19/04/2024 07:40:37 ::: 7-BA-2894-2023.DOC the Investigating Officer.
19. The Bail Application is disposed of accordingly.
20. It is clarified that observations made herein are prima facie, and the Trial Court shall decide the case on its merits, uninfluenced by the observations made in this order.
[MADHAV J. JAMDAR, J.] Page 12 of 12 Sonali ::: Uploaded on - 17/04/2024 ::: Downloaded on - 19/04/2024 07:40:37 :::