Gujarat High Court
Sushanta Sarkar vs National Investigation Agency on 25 March, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.A/112/2024 ORDER DATED: 25/03/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (REGULAR BAIL) NO. 112 of 2024
================================================================
SUSHANTA SARKAR
Versus
NATIONAL INVESTIGATION AGENCY & ANR.
================================================================
Appearance:
AADITYA D BHATT(8580) for the Appellant(s) No. 1
CHANDNI S JOSHI(9490) for the Appellant(s) No. 1
KSHITIJ M AMIN(7572) for the Opponent(s)/Respondent(s) No. 1
MR LB DABHI, APP for the Opponent(s)/Respondent(s) No. 2
================================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 25/03/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. The present appeal is filed under Section 21 of the National Investigation Agency Act, 2008 seeking bail and challenging the order of the Special Judge (NIA) in NIA-Criminal Misc.Application No.46 of 2023 dated 03.11.2023. The reliefs prayed for are as under:-
"a) This Hon'ble Court may be pleased to admit this appeal;
b) Your Lordships may be pleased to quash and set aside the impugned order dated 03.11.2023 passed by the Hon'ble Court Of Special Judge (The National Investigation Agency Act, 2008), Ahmedabad, the appellant begs to challenge the legality and validity of the judgment and order Page 1 of 24 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Apr 07 2025 Downloaded on : Fri Apr 11 23:22:27 IST 2025 NEUTRAL CITATION R/CR.A/112/2024 ORDER DATED: 25/03/2025 undefined passed in NIA Criminal Miscellaneous Application No. 46 Of 2023 and thereby be pleased to enlarge the appellant on bail with F.I.R NO. RC-26 2021/NIA/DLI dated 06.10.2021 registered by Superintendent of Police National Investigation Agency and the 2nd supplementary chargesheet no. 5(B)/2022 dated. 20.02.2023 for the offences punishable under sections: 120B of IPC, Sections 8(c) and 21(c) & 23(c), 29 of Narcotic Drugs and Psychotropic Substances Act, 1985, and Sections 17 ,18 & 22C of the Unlawful Activities (Prevention) Act, 1967 on such reasonable terms and conditions as this Hon'ble Court may deem fit to impose in the interest of justice and the circumstances of the case; and
c) For such further and other reliefs as this Hon'ble Court may deem fit to impose in the interest of justice and circumstances of the case."
2. It is a case where, the appellant-accused is in judicial custody connection with an offence registered vide RC No.26/2021/ NIA/DLI with the National investigation Agency, for alleged commission of offences punishable under Section 120B of the IPC, Secs.8(c), 21(c), 23(c) and 29 of the NDPS Act, 1985 and Secs.17, 18 and 22(c) of the Unlawful Activities (Prevention) Act, 1967, having culminated into Special NIA Case No.01/2023 pending before the Special Court.
2.1 The appellant-accused Sushanta Sarkar is proprietor of Page 2 of 24 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Apr 07 2025 Downloaded on : Fri Apr 11 23:22:27 IST 2025 NEUTRAL CITATION R/CR.A/112/2024 ORDER DATED: 25/03/2025 undefined M/s.Jesus Christ Impex (A-33). WA-07 had directed co-accused A-24 Kabir Talwar to provide the name and GSTN of M/s.Magent India which was further shared with the appellant-accused. After receiving the imported heroin laden consignment, appellant (A-30) had sent the imported consignment by using E-way bill-and invoice in the name of A-34 for further distribution in India. The accused persons have used their Firms namely M/s.Jesus Christ Impex, M/s.Magent India, M/s.Vyom Fashions and M/s.V.K.Enterprises. The appellant-accused was in contact with co-accused Vitesh Koser @ Raju Dubai (WA-07) and after his return he got his firm M/s.Jesus Christ Impex re-registered. The Firm's GSTN was registered on 08/10/2018 and in the year 2020, the appellant agreed to import the heroin laden consignment camouflaged as semi processed talc in lieu of funds from Afghanistan to India. The consignment was supplied by A-38 vide invoice dated 16/09/2020 in 18 bags having gross weight of 26500 kgs. at US $ 6625. A-30 and A-33 have never exported or imported this type of goods. No remittance was paid to the exporter by A-33.
3. Learned advocate for the appellant submitted that the search of the shipment was brought to the appellant's knowledge on 14-09-2021, the appellant was arrested on 27-09-2022. If the appellant had any malafide intentions or any knowledge about the contraband in the consignment he would have tried to flee away. Page 3 of 24 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Apr 07 2025 Downloaded on : Fri Apr 11 23:22:27 IST 2025
NEUTRAL CITATION R/CR.A/112/2024 ORDER DATED: 25/03/2025 undefined This shows that the appellant was genuinely under the impression that the talcum stones/powder is being imported through the consignment and was not in any way aware of the fact he was importing the contraband Heroine inside the country. 3.1 It is further submitted that M/S Jesus Christ Impex is a genuine firm registered in 2012 (Importer-Exporter Code dated 27.06.12) with true and genuine documents. It was mentioned in the invoice of the consignment that the containers contained semi processed talc stones/powder. The appellant was only running a company/ proprietorship firm, buying a specialised range of products and transporting the goods to traders. The appellant came to know that the said consignment had to be delivered to Delhi Godown by Raju Dubai only at time when goods were ready to be dispatched. The appellant had declined to transport but later was forced to agree. The appellant had no direct knowledge about the contraband being consigned in the name of Talcum Powder. 3.2 It is submitted that PW-47 i.e. Customs Superintendent who attended the custom clearing process, categorically states that, the said consignment was kept for and passed through 100% examination as per the order of the authority. That, the said witness also claims that, one Pawan Kumar Chahal (Appraising officer) i.e PW-49, had physically examined the contents of goods in each bag. That, on such thorough physical examination, said PW-47 had Page 4 of 24 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Apr 07 2025 Downloaded on : Fri Apr 11 23:22:27 IST 2025 NEUTRAL CITATION R/CR.A/112/2024 ORDER DATED: 25/03/2025 undefined issued the Out of Charge Certificate to shift the consignment out of the CFS.
3.3 It is further submitted that the godown at Neb Sarai, New Delhi was also used by the M/s. Magent to unload and store the other consignment imported with Bill of Entry Dated 23.12.2020 by M/s.Magent itself through Raju Dubai. That, the investigation is unable to place on record a single document which shows that the said godown at Neb Sarai, New Delhi was used for the purposes of unloading and storing of the heroin laden consignment imported by M/s. Jesus Christ Impex alone and not by any other importer or purchaser. Thus, the present appellant prima facie became victim of the crime committed by the other accused in import of heroin laden consignment through various ports in Gujarat and not from Kolkata. The consignment vide B/E no. 9511246 was booked merely to facilitate the trade between exporter at Afghanistan and the Marble traders based in Kolkata on request of Raju Dubai in good faith. Therefore, the appellant cannot be presumed to be aware or a party to any conspiracy about the contents of the container, as the container was sealed much before the appellant agreed to sell to the M/s.Magent India. Further, investigation has failed to collect corroborative evidence to substantiate the allegations of import and sell to the M/s.Magent. That, the investigation has not even produced iota of Page 5 of 24 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Apr 07 2025 Downloaded on : Fri Apr 11 23:22:27 IST 2025 NEUTRAL CITATION R/CR.A/112/2024 ORDER DATED: 25/03/2025 undefined evidence to support its case linking the present accused with the alleged firm M/s. Magent India.
3.4 It is submitted that the Court below without recording satisfaction as mandated by the Section 37 of the NDPS Act, passed the Ss 4 impugned judgment and order below Exh-1 and wrongly rejected the bail application. In order to Satisfy the twin test of Section 37 of the NDP Act, Supreme Court in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and another, reported in, 2005 AIR SCW 2215, while considering the provisions of Section 21 of the Maharashtra Control of organized Crime Act, 1999 which are pari materia to Section 37 of the NDPS ACT, has laid down. It is submitted that the question as to whether he is involved in the commission of organized crime or abetment thereof must be judged objectively. In case of circumstantial evidence like the present one, not only culpability or mens rea of the accused should be prima facie established, the Court must also consider the question as to whether the circumstantial evidence in such whereby all the links in the chain are complete. 3.5 It is submitted that the Supreme Court in case of Ranjitsing Brahmajeetsing Sharma (supra) has held that the duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to Page 6 of 24 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Apr 07 2025 Downloaded on : Fri Apr 11 23:22:27 IST 2025 NEUTRAL CITATION R/CR.A/112/2024 ORDER DATED: 25/03/2025 undefined the provisions contained in Sub-section (4) of Section 21 of the Act, the Court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction.
3.6 It is further submitted that in Union of India vs Shiv Shanker Kesari, reported in, (2007) 7 SCC 798, the Supreme Court has explained the approach that a Court should adopt in an application for bail under Section 37 of the NDPS ACT, "11, The Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court ts called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.
12. Additionally, the Court has to record a finding that while on bail the accused is not likely to commit any offense and there should also exist some materials to come to such a conclusion."
3.7 It is submitted that the twin tests for the grant of bail Page 7 of 24 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Apr 07 2025 Downloaded on : Fri Apr 11 23:22:27 IST 2025 NEUTRAL CITATION R/CR.A/112/2024 ORDER DATED: 25/03/2025 undefined are completely satisfied and therefore bail is required to be granted in the interest of justice.
3.8 with regards to the investigations carried out ,It is submitted that the statements relied upon by the prosecuting agency cannot be relied upon in view of the fact that they were obtained forcefully and with a threat to harm the family. Not only the words are planted to their convenience but the investigation hours would indicate that the appellant had been interrogated at past midnight and for obtaining the statements, the appellant was subjected to undue pressure and agony.
4. As against this, learned counsel Mr.Kshitij Amin, appearing for the NIA submitted that the involvement of the appellant revealed during the course of investigation of offence pertaining to seizure of 2988.21 kgs. of narcotic drug valuing Rs.21,000 crores from the Mundra Port. It revealed in investigation that the consignment seized at Mundra Port was not the sole consignment but series of transactions took place transporting narcotics prior to that seizure of narcotics in huge quantity at Mundra. The international drugs players adopted modus operandi to transport contraband into India under the guise of semi- processed talc stones. Looking to the magnanimity, seriousness, modusoperandi executed by internal players, the Home Department ordered to transfer the investigation to N.J.A. The Page 8 of 24 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Apr 07 2025 Downloaded on : Fri Apr 11 23:22:27 IST 2025 NEUTRAL CITATION R/CR.A/112/2024 ORDER DATED: 25/03/2025 undefined involvement of the appellant along with other co-accused resulted into filing of second supplementary chargesheet. The appellant is shown as A-30 and his company M/s.Jesus Christ Impex is shown as A-33.
4.1 It is submitted that the role of the appellant is to the effect that he is part of the conspiracy hatched by co-accused persons namely Vitesh Koser (WA-07) and other co-accused persons who are involved in import of heroin laden semi-processed talc stones from Afghanistan. The WA-07 Vitesh Koser directed Ai24 Kabir Talwar to provide the name and GSTN of A-34 M/s.Magent India for sharing with the present appellant (A-30). The present appellant in the month of November, 2020 sent the imported heroin laden consignment through his Firm A-33 to Delhi by using E-way bill and invoice in the name of A-34 for further distribution. The evidence has come on record that, to smuggle large quantities of heroin from Afghanistan to India, the accused persons created and used shell/dubious Firms and at least six consignments were imported in India from Afghanistan via Iran of which the last consignment was seized by DRI, Gandhidham, at Mundra Port. 4.2 It is revealed from the investigation that accused No.30 i.e. the present appellant was in contact with wanted accused Vitesh Koser (Raju Dubai- WA-07) since 2008. The appellant had visited Dubai and met co-accused WA-07 and after coming back to Page 9 of 24 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Apr 07 2025 Downloaded on : Fri Apr 11 23:22:27 IST 2025 NEUTRAL CITATION R/CR.A/112/2024 ORDER DATED: 25/03/2025 undefined India he re-registered his Firm M/s.Jesus Christ Impex and had agreed to import the heroin laden consignment of semi-processed talc stones in lieu of funds from Afghanistan to India. The said consignment was supplied by wanted accused A-38 vide invoice No.003 dated 16/09/2020. It was packed in 18 bags having gross weight of 26500 kgs. at a valued of U.S. $ 6625. In the past, A-30 and A-33 have never exported or imported such type of goods. No remittance was paid to the exporter by A-33. The appellant who has imported the alleged consignment, has not paid any remittance, but it has come in the evidence that he received an amount of Rs.22,09,000/through Custom Officer Rathindranath Dutta, X-3 (close associate of WA07) and through NEFT from Vitesh Koser on 27.01.2021 to 23.02.2021 and 17.08.2021 and 05.01.2021. 4.3 It is submitted that that there are oral evidences, documentary evidences, money trail, technical evidence, which directly establish the involvement of the appellant in commission of the offence. It is submitted that looking to the seriousness, gravity, modus operandi, transporting contraband into India in conspiracy hatched by international players involved in narco-terrorism and there being specific bar of Sec.37 of the NDPS Act.
5. Having heard learned Advocates for the parties and having perused the documents on record, it appears that accused Sushanta Sarkar (A-30) is a close associate of Vityash Koser @ Raju Page 10 of 24 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Apr 07 2025 Downloaded on : Fri Apr 11 23:22:27 IST 2025 NEUTRAL CITATION R/CR.A/112/2024 ORDER DATED: 25/03/2025 undefined Dubai since 2008. He is involved in the various import export businesses with co-accused Vityash Koser @ Raju Dubai (WA-7). During investigation, it has been revealed that the registration of his firm M/s Jesus Christ Impex was cancelled and he renewed it in 2018 after his visit to Dubai and meeting with Vityash Koser (WA-7) there.
5.1 Vityas Koser @ Raju Dubai (WA-7) informed Sushanta Sarkar about import of heroin laden consignment from Afghanistan to India in lieu of funds. He told Sushanta that initially the consignment imported would come on trial basis and he have to provide details of his firm for importing the same and he would get handsome amount in lieu of this transaction. Accordingly, in lieu of funds/money, Sushanta Sarkar agreed for the same. 5.2 On directions of Vityash Koser @ Raju Dubai, he provided details of his firm M/s. Jesus Christ Impex for import of heroin laden consignment camouflaged as a semi processed talc stone from Afghanistan to India for which he was to receive monetory benefits. He had received the original documents related to import through courier from Afghanistan and shared the same with Vityash Koser @ Raju Dubai and CHA, who was arranged by Rathindranath Dutta. Retired customs official and close confidante of co-accused Vityash Koser @ Raju Dubai. During investigation, it has been established that on directions of Vityash Koser, Page 11 of 24 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Apr 07 2025 Downloaded on : Fri Apr 11 23:22:27 IST 2025 NEUTRAL CITATION R/CR.A/112/2024 ORDER DATED: 25/03/2025 undefined Rathindranath Dutta provided Rs.02 lakhs to Sushanta Sarkar as a part payment of the consignment imported from Afghanistan. 5.3 After clearing of the consignment by custom authorities, on directions of Vityash Koser, Sushanta Sarkar arranged transportation of heroin laden consignment of semi processed talc stone from Kolkata to New Delhi. 5.4 Further on directions of Vityash Koser, he raised the invoice and e-way bill for movement of consignment in the name of M/s. Magent India, firm owned by co-accused Prince Sharma and controlled by another co-accused Harpreet Singh Talwar @ Kabir Talwar. For loading of consignment, Sushant Sarkar directed his close associate Mrinal Kanti Konar. During investigation, it has been revealed that Sushanta Sarkar again contacted Vityash Koser for other consignments, however, Raju Dubai told him that other consignments would come at Mundra port and if he was interested, he would send the same in name of M/s. Jesus Christ Impex, however, due to long distance Sushanta declined for the same. 5.5 Sushant Sarkar received Rs.22.09 Lakhs from Vityash Koser @ Raju Dubai through cash deposited by his henchmen X-2 in the account of M/s. Jesus Christ Impex in lieu of importing heroin laden consignment of semi processed talc stone and delivering the same in Delhi. During investigation, it has been established that Page 12 of 24 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Apr 07 2025 Downloaded on : Fri Apr 11 23:22:27 IST 2025 NEUTRAL CITATION R/CR.A/112/2024 ORDER DATED: 25/03/2025 undefined Sushanta Sarkar never sent any remittance to supplier of semi processed talc stone.
5.6 Statement of Sh. Mrinal Kanti Konar s/o Hara Kali Konar r/o Nachipur, PS-Tarakeswar, Dihibatpur, Hugli, West Bengal- 712414 will prove that Sushanta Sarkar had imported talc stone in Calcutta.
5.7 Statements of Sh. Kuldeep Bhargav & Sh. Jitender Kumar will prove the arrest and personal search of Sushanta Sarkar s/o Late Marayan Chandra Sarkar r/o 188 (1), Mahanandapally, PO-Jhaljhalia, PS-English Bazar, Distt.-Malda, West Bengal-732102 on 27.09.2022.
5.8 Statement of Sh. Rahul Chamaria s/o Sanwar Chamaria r/o Flat No.1301, Tower-C8, Emami City, 2, Jessore Road, Kolkata- 700028 will prove the production cum seizure memo dated 04.10.2022. It will also prove that M/s. Jesus Christ Impex imported semi processed talc on 19.11.2020.
5.9 Statement of Sh. Tapan Dass s/o Late Khagen Chandra Dass r/o 171/27, Sarat Chatterjee Road, Haora Corporation, Sibpur, Haora, West Bengal-711102 will prove that he had collected Rs.55,000/- on the direction of Subhashish from Sushanta Sarkar in the month of November 2020.
Page 13 of 24 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Apr 07 2025 Downloaded on : Fri Apr 11 23:22:27 IST 2025
NEUTRAL CITATION R/CR.A/112/2024 ORDER DATED: 25/03/2025 undefined 5.10 Statement of Sh. Mahendra Meena s/o Kirodi Lal Meena r/o Customs Quarters, Flat No. D-310, 179, Shantipalli, Kolkata- 700107 will prove that the consignment of semi processed talc stone imported by Jesus Christ Impex is marked for 100% examination. It will also prove that the consignment was examined by Sh. Pavan Kumar Chanchala, Examiner.
5.11 Statement of Ms. Bharti Singh, Assistant Commissioner, SIIB-O/o Pr. Commissioner Customs Port Kolkata will prove the letter dated 06.10.2022 received from the office of Commissioner of Customs (Port) Customs House, Kolkata, West Bengal regarding examination report and examination order of consignment of semi processed talc stone imported by M/s. Jesus Christ Impex vide bill no.9511246 dated 09.11.2020.
5.12 Statement of Sh. Pavan Kumar Chanchal s/o Sh. Radheshyam Singh r/o 1st floor, 626/1/2/5, Sarat Chatarjee Road Sibpur, Howrah - West Bengal will prove that the consignment of semi processed tale stone imported by Jesus Christ Impex is marked for 100% examination. It will also prove that he checked consignment physically but the consignment was checked only in the container and the jumbo bags were not emptied.
6. There are also number of documentary Evidence such as letter No.PAN/1/9/2019-20/5118 dated 23.08.2022 received from Page 14 of 24 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Apr 07 2025 Downloaded on : Fri Apr 11 23:22:27 IST 2025 NEUTRAL CITATION R/CR.A/112/2024 ORDER DATED: 25/03/2025 undefined Asst. Director of Income Tax (System)-1(5) O/o ADG (Systems)-1, New Delhi in reference to NIA Letter no.RC-26/2021/NIA/DLI/I&O/ 3925 dated 11/08/2022 regarding detail of PAN cards. Arrest memo of Sushanta Sarkar s/o Late Marayan Chandra Sarkar r/o 188 (I), Mahanandapally, PO-Jhaljhalia, PS-English Bazar, Dist-Malda, West Bengal-732102 on 27.09.2022. Personal search memo of Sushanta Sarkar s/o Late Marayan Chandra Sarkar r/o 188 (1), Mahanandapally, PO-Jhaljhalia, PS-English Bazar, Distt.-Malda, West Bengal-732102 on 27.09.2022. Production cum seizure memo dated 04.10.2022 vide which documents related to the consignment imported by M/s Jesus Christ Impex were produced by Rahul Chamaria. Disclosure cum pointing out memorandum of accused Sushanta Sarkar dated 06.10.2022. Letter dated 06.10.2022 from Bharti Singh Assistant Commissioner of Customs (Port) Customs House, Kolkata, West Bengal regarding examination report and examination order of consignment of semi processed talc stone imported by M/s Jesus Christ Impex vide bill no.9511246 dated 09.11.2020. Letter no. UTI ITSL/PAN-GSD/59583 dated 26.08.2022 from the office of UTIITSL Plot No. 3, Sector-11, CBD Belapur, Navi Mumbai-400614. Seizure memo of semi processed talc dated 07.09.2022 to 14.09.2022.
7. This Court Court, in the same Crime Register, had an occasion to deal with the bail applications of Accused No.1- Page 15 of 24 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Apr 07 2025 Downloaded on : Fri Apr 11 23:22:27 IST 2025 NEUTRAL CITATION R/CR.A/112/2024 ORDER DATED: 25/03/2025 undefined Machavaram Sudhakar, Accused No.3-Rajkumar Perumal and Accused No.8-Sobhan Aryanfer being Criminal Appeal No.1585 of 2022, Criminal Appeal No.2477 of 2022 and Criminal Appeal No.1429 of 2022, which came to be rejected by order dated 09.06.2023. Against this order, the accused had filed SLP (Cri.) Diary No.38756 of 2023, SLP (Cri.) No.389 of 2024 and SLP (Cri.) No.9793 of 2023, which came to be dismissed by the Supreme Court by order dated 09.10.2023, 08.01.2024 and 22.08.2023, respectively. Accused No.24-Harpreet Talwar had also filed Criminal Appeal No.1980 of 2023 before this Court, which also came to be dismissed by order dated 16.04.2025. Against this order, the said accused had filed SLP (Cri.) No.8878 of 2024, which is pending before the Supreme Court. Accused No.29-Shaheenshah Zaheer and accused No.25-Prince Sharma have filed Criminal Appeal No.405 of 2024 and Criminal Appeal No.1771 of 2024, respectively, which are pending before this Court.
8. The Apex Court in case of Gurwinder Singh Vs. State of Punjab & Anr., reported in (2024) 5 SCC, 403, in paras-29 and 30 has held as under:-
"29. On a textual reading of Section 43 D(5) UAP Act, the inquiry that a bail court must undertake while deciding bail applications under the UAP Act can be summarised in the form of a twin-prong test:Page 16 of 24 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Apr 07 2025 Downloaded on : Fri Apr 11 23:22:27 IST 2025
NEUTRAL CITATION R/CR.A/112/2024 ORDER DATED: 25/03/2025 undefined (I) Whether the test for rejection of the bail is satisfied?
1.1 Examine if, prima facie, the alleged 'accusations' make out an offence under Chapter IV or VI of the UAP Act.
1.2 Such examination should be limited to case diary and final report submitted under Section 173 CrPC;
(2) Whether the accused deserves to be enlarged on bail in light of the general principles relating to grant of bail under Section 439 CrPC ('tripod test')?
On a consideration of various factors such as nature of offence, length of punishment (if convicted), age, character, status of accused etc., the Courts must ask itself:
2.1 Whether the accused is a flight risk?
2.2. Whether there is apprehension of the accused tampering with the evidence?
2.3 Whether there is apprehension of accused influencing witnesses?
30. The question of entering the 'second test' of the inquiry will not arise if the 'first test' is satisfied. And merely because the first test is satisfied, that does not mean however that the accused is automatically entitled to bail. The accused will Page 17 of 24 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Apr 07 2025 Downloaded on : Fri Apr 11 23:22:27 IST 2025 NEUTRAL CITATION R/CR.A/112/2024 ORDER DATED: 25/03/2025 undefined have to show that he successfully passes the 'tripod test'."
9. The Apex Court in case of Narcotics Control Bureau Vs. Kashif, reported in Criminal Appeal No.5544 of 2024 by judgment and order dated 20.12.2024, in para-39 has held as under:-
"39. The upshot of the above discussion may be summarized as under:
(i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act.
(ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act.
(iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted Page 18 of 24 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Apr 07 2025 Downloaded on : Fri Apr 11 23:22:27 IST 2025 NEUTRAL CITATION R/CR.A/112/2024 ORDER DATED: 25/03/2025 undefined in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone.
(v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused.
(vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act.
10. The Apex Court in case of State of Kerala & Ors. Vs. Page 19 of 24 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Apr 07 2025 Downloaded on : Fri Apr 11 23:22:27 IST 2025 NEUTRAL CITATION R/CR.A/112/2024 ORDER DATED: 25/03/2025 undefined Rajesh & Ors., reported in (2020) 12 SCC, 122 in paras-18 to 20 has held as under:-
"18. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in offences under NDPS Act. In Union of India Vs. Ram Samujh and Ors. 1999(9) SCC 429, it has been elaborated as under:
"7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting deathblow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95)] as under:
24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal Page 20 of 24 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Apr 07 2025 Downloaded on : Fri Apr 11 23:22:27 IST 2025 NEUTRAL CITATION R/CR.A/112/2024 ORDER DATED: 25/03/2025 undefined trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.
8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,
(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and
(ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-
accused on bail. Instead of attempting to take a holistic view of the harmful socioeconomic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended."
19. The scheme of Section 37 reveals that the Page 21 of 24 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Apr 07 2025 Downloaded on : Fri Apr 11 23:22:27 IST 2025 NEUTRAL CITATION R/CR.A/112/2024 ORDER DATED: 25/03/2025 undefined exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC, but is also subject to the limitation placed by Section 37 which commences with nonobstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.
20. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.
11. This Court in the preceding paras has discussed the evidence available against the appellant, prima facie case against Page 22 of 24 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Apr 07 2025 Downloaded on : Fri Apr 11 23:22:27 IST 2025 NEUTRAL CITATION R/CR.A/112/2024 ORDER DATED: 25/03/2025 undefined him. The Court has also observed that the investigation has concluded where several charge sheets have been filed over the period. There are still several accused who are absconding and therefore, chance of the appellant, if being released on bail, to abscond cannot be ruled out.
12. The Court also finds that in view of the evidence discussed hereinabove and the underlying intent as well as the mischief that is sought to be curbed by the NDPS Act, this Court is of the considered view that the conditions stipulated under Section 37 of the Act are not satisfied and there are no "reasonable grounds‟ to presume the accused as not being guilty of the offence.
13. In view of the sheer magnitude of the case and the evidence available against the appellant, the Court is not inclined to exercise discretion in favour of the appellant.
14. Reportedly trial is also in progress, where PW No.6- Mrinal Kanti Konar (PW No.14 as per the charge sheet) has been examined at Exh.385 and he has supported case of prosecution in naming rule of the present appellant. Though one of the prime witnesses, who was officer of the Customs Department has reported expired, nonetheless his statement made during the course of investigation does implicate the present appellant and therefore, non-availability of such witness for trial is of no Page 23 of 24 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Apr 07 2025 Downloaded on : Fri Apr 11 23:22:27 IST 2025 NEUTRAL CITATION R/CR.A/112/2024 ORDER DATED: 25/03/2025 undefined consequence.
15. The Court has also perused the order of the Special Court while rejecting bail application of the present appellant and is in agreement with the reasonings given by the Special Court.
16. In view of the aforesaid discussion, the Court is not inclined to exercise discretion in favour of the appellant. The appeal therefore deserves to be and is hereby dismissed. Rule is discharged.
(A.Y. KOGJE, J) (SAMIR J. DAVE,J) SHITOLE Page 24 of 24 Uploaded by SHITOLE MANISH P.(HC00188) on Mon Apr 07 2025 Downloaded on : Fri Apr 11 23:22:27 IST 2025