Bombay High Court
Shashikant Prabhu vs Rahul Saini And Anr on 21 December, 2020
Author: Prakash D. Naik
Bench: Prakash D. Naik
1 BA.198.19 &1617.19
Ethape
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 198 OF 2019
Shashikant Prabhu .. Applicant
Vs.
1. Rahul Saini, Intelligence Officer
Narcotics Control Bureau, Mumbai.
2. State of Maharashtra .. Respondents
WITH
CRIMINAL BAIL APPLICATION NO.1617 OF 2019
Harshad Chandrakant Gawde @Harry ...Applicant.
Vs.
1. State of Maharashtra
2. Narcotics Control Bureau, Mumbai ...Respondents.
......
Mr. Rajendra Shahasane Advocate for the Applicant in B.A. No.198.2019.
Mr. Vinay Nair a/w Ms. Janaki Ravi, Advocate for the Applicant in B.A.
No.1617.2019.
Ms. A.A. Takalkar, APP for the Respondent-State in both Bail Applications.
Mr. Rahul Tiwari, Special P.P. for N.C.B. in both Bail Applications.
......
CORAM : PRAKASH D. NAIK, J.
DATE : 21st DECEMBER, 2020
PC.
1 The applicants in both these applications were arrested by NCB
Mumbai for offences under Section 8 (c) read with Sections 20 (c), 25, 28 and
Digitally
signed by 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short
RajeP. RajeP. Aher
Date:
Aher 2020.12.24
11:31:51 "NDPS"). The applicant in bail application no. 198 of 2019 was arrested on
+0530
06th April 2018 whereas the applicant in bail application No.1617 of 2019 was
arrested on 09th April, 2018.
2 BA.198.19 &1617.19
2. The case of the prosecution is that specific information was
received by NCB on 13th March, 2018 which was reduced into writing. As per
the information, person named Ravi Kumar was to arrive at the main gate of
Infinity Mall, Andheri (West) Mumbai with substantial quantity of Hashish
kept in his bag. Person named Salim Naseem Khan would arrive at the same
place to take delivery. Team was constituted and proceeded to Infinity Mall.
One person alighted from Rickshaw and waited at the main gate of Infinity
Mall. At that time, white coloured car Jeep arrived in which two persons were
seated on front seats. One of them told the person who was waiting on the
main gate to board the car. The said person boarded the car and handed over
bag to the person sitting at the driver seat. When the person at driver seat was
taking out the packets from the back pack bag, narcotics team encircled the
vehicle and told the inmates in the car to come out with the bag. The person
who came with the bag disclosed his name as Ravi Kumar (Accused No.1). The
other persons who was in the car disclosed his identity as Salim Naseem Khan
(Accused No.2). Third person disclosed his name Anup Gupta. The bag was
opened by accused No.1 and 20 packets were removed. The accused No.2
disclosed that he has his office in his restaurant "Smoking Grill Kitchens"
which is near the spot. All of them proceeded to said restaurant. It was found
that the back pack bag was containing Hashish, narcotics drug. Weight of the
narcotics drug was found to be 4.00 kg. The raiding team alongwith panchas
3 BA.198.19 &1617.19
completed the procedural safeguards. Personal search of the accused No.1 was
conducted and certain documents were recovered from him. Personal search
of accused No.2 was also conducted and mobile phone, wallet, Aadhar Card
and ATM Card were recovered from him. Similarly, personal search of accused
No.3 was also conducted and ATM and other documents were also recovered.
Search was also conducted of premises "Smoking Grill Kitchens". The
contraband and the documents were seized. Statement of accused No.3 was
recorded under Section 67 of NDPS Act. Search of house of accused No.2 was
conducted. Statements of accused Nos.1 and 2 were recorded under Section
67 of NDPS Act. Accused Nos.1, 2 and 3 were arrested on 15th March 2018.
Investigation proceeded. Applicant Shashikant Prabhu (accused No.4) was
arrested on 06th April 2018. His statement was recorded under Section 67 of
NDPS Act. Statement of Harshad Gawde (accused No.5) was recorded under
Section 67 of NDPS Act. He was arrested on 09th April 2018. On completing
investigation, complaint was filed before the Special Judge under the NDPS Act
on 24th August 2018. The proceedings are pending before the Special Judge
under the NDPS Act vide NDPS Special Case No. 170 of 2018.
3. Accused No.3 Anup Gupta was granted bail by the Special Court
vide order dated 12th June 2018. The application for bail preferred by the
applicant Shashikant Prabhu was rejected by Ld. Special Judge by order dated
4 BA.198.19 &1617.19
01st December 2018. The application for bail preferred by applicant Harshad
Gawde was rejected by Ld. Special Judge by order dated 23rd October 2018.
4 Learned Advocate for Applicant in bail application No.198 of
2019 submitted that the applicant has been falsely implicated in this case.
There is no legally admissible evidence to show his involvement in the crime.
There is no recovery of narcotics drugs from him. The case of the prosecution
is based on the statements of applicant and the co-accused recorded under
Section 67 of the NDPS Act, which is not admissible in evidence. Statement
was retracted. There is no corroborative evidence to establish the involvement
of the applicant except statement under Section 67 of the NDPS Act. There is
no other evidence against him. Even after thorough investigation the
respondent has failed to find any nexus between applicant and other accused.
There are no bank transfers or money transactions between applicant and the
other accused. No evidence is found against the applicant to corroborate his
own retracted statements and role assigned to him by the co-accused. The
statements under Section 67 are not admissible in evidence and the same
cannot be used as confession against the applicant. Co-accused have also
retracted the statements. There is no independent evidence to substantiate
link of the applicant in the crime.
5 BA.198.19 &1617.19
5 The respondents have opposed the application for bail. Affidavit
on behalf of the respondent is on record. Learned counsel for the respondent
submitted that, the offence is of serious in nature. The involvement of the
applicant is established during the course of investigation. The applicant was
actively involved in transaction of narcotics drugs with accused No.2 and
accused No.5. He was part of a drug syndicate operated by co-accused. He
played pivotal role in distribution of drugs to the consumer. In his statement
under Section 67 of the NDPS Act recorded on 06th April 2018, the applicant
has maintained that he was working for accused No.2 since September 2017
and his primary job was to sell "Charas" also known as Hashish to various
users. It is submitted that accused No.2 used to give Hashish to accused No.5
to make packets of 10 grams each and the applicant used to sell the best
quality "Charas". The applicant has admitted that he used to sell drugs worth
Rs. 80,000/- to various users. There is call data record which shows that
applicant was in touch with accused No.2 and they had exchanged about 30
calls in span of 2.5 months. The statement of accused Nos.2 and 5 shows
involvement of applicant. The applicant and the co-accused have entered into
conspiracy and abetted each other to procure, store, sell, export and
transportation of narcotic drugs and committed the alleged offences. The
effect of statement under Section 67 will be looked into at the appropriate
stage. Other than the statement under Section 67 of the NDPS Act, there is
6 BA.198.19 &1617.19
evidence showing involvement of the applicant.
6. Learned Advocate for the applicant in Bail Application No.1617
of 2019 submitted that there is no evidence against the applicant. There is no
independent evidence against the applicant. There is no recovery of narcotic
drugs from the applicant. The statement under Section 67 of the NDPS Act is
inadmissible in evidence. The prosecution is relying on the bank statements
and other documents to show the involvement of the applicant in the alleged
transactions. The applicant was working with accused No.2. Hence, the bank
transactions cannot be considered as incriminating evidence to show the
involvement of the applicant. There is nothing on record to establish that the
amount reflected in the bank statements was derived from narcotic drugs
transactions. The applicant has no role to play in the recovery. There is
nothing on record to establish that the applicant was involved with
contraband which is recovered from the co-accused on 14th March 2018. The
applicant is in custody from 09th April 2018. Thus, for a period of about 32
months the applicant is in custody.
7 The respondents have opposed the application by filing an
affidavit-in-reply. Learned advocate for the respondent submitted that the
offence is of serious in nature. The applicant is an integral part of a drug
syndicate which was primarily operated by accused No.1 and accused No.2. In
7 BA.198.19 &1617.19
his statement, the applicant has admitted that he was manager of accused
No.2 handling his drugs business. The statement of accused No.2 and 4
implicated him. The accused No.2 had opened establishment for the purpose
of turning black money collected from drugs trade to white money. The
applicant has admitted that he used to make packets of 10 grams. Accused
No.4 used to sell the drugs in the market. On instructions of accused No.2
applicant used to deposit money in different bank accounts. He had deposited
money in various bank accounts. The applicant and the other accused have
entered in the criminal conspiracy and abetted each other to procure, store,
sell, export and transportation of narcotic drugs. Other than the statement
under Section 67 of NDPS Act, there is independent evidence against the
applicant showing his involvement in the crime. The document relating to
bank transactions is incriminating evidence against the applicant. Hence, bail
may not be granted to the applicant.
8 Undisputedly, information was received by the intelligence
Officer on 13th March 2018 which was reduced in writing. Information was
relating to visit of accused No.1 at Infinity Mall with Hashish. Information also
referred to visit of accused No.2 at the spot to accept delivery of contraband.
Pursuant to the receipt of information, the respondent arranged team for
conducting raid. Accused No.1, 2 and 3 were arrested. Contraband was
8 BA.198.19 &1617.19
recovered from the bag which was found to be containing Hashish. Thus, the
information did not refer to involvement of the applicants in aforesaid
transaction. The respondents are relying upon the statement of accused No.2
which was recorded during the course of investigation after recovery of the
narcotics drugs. In the said statements the co-accused i.e. accused No.2 has
stated that applicants were party to the transactions relating to drugs
business conducted by him. It is pertinent to note that, there was no cogent
evidence to establish that the applicants had any point of time transported,
sold, delivered the drugs at the instance of accused no.2. The prosecution is
relying upon the call data record to show the link of accused No.4 with
accused No.2. The prosecution is relying upon the bank transaction to
establish link of accused No.5 with accused No.2. Bank transaction also
referred to the depositing the amount into account of other persons. The
accused No.2 himself has stated that the applicants were working with him.
Merely on account of call exchanged between accused No.4 and accused No.2,
no inference could be drawn, showing his involvement in the crime. The bank
transactions relied upon by the prosecution to show the involvement of
accused No.5 would not lead to inference of his involvement in the crime.
Prima facie, there is nothing to indicate that the amount was relating to sell or
procurement of drug. No other incriminating evidence to show involvement of
the applicants is on record. There is no recovery from the applicants. Accused
9 BA.198.19 &1617.19
No.5 was working as manager with accused No.2 as stated by him show
assuming that bank transaction prima facie, it may not lead to the inference of
commission of crime. The statements under Section 67 appear to have been
retracted. Sans statements of the applicant and the co-accused which were
recorded under section 67 of the NDPS Act, apparently, there is no cogent
evidence against the applicants to show their involvement in the crime.
Learned Advocates for both the applicants have heavily relied upon the
decision of the Apex Court in the case of Tofan Singh Vs. State of Tamil Nadu
delivered in Criminal Appeal No. 152 of 2013. In the said decision the majority
opinion is as follows:-
"155. 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 provision 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 trial of an
offence under the NDPS Act." .
9 Thus, the Apex Court has held that the statement under Section
67 of the NDPS Act cannot be relied upon. In any case, there is no
corroborative evidence to substantiate the averment in the statements of the
10 BA.198.19 &1617.19
accused. Hence, the embargo under Section 37 of the NDPS Act would not
cause impediment for granting bail to the applicants. Hence, the following
order :-
ORDER
i) Bail Application Nos. 198 of 2019 & 1617 of 2019 are allowed.
ii) The applicants are directed to be released on bail in connection with NDPS Special Case No.170 of 2018 registered with Narcotics Control Bureau, Mumbai on executing P.R. bond in the sum of Rs.30,000/- each with one or more sureties in the like amount;
iii) The applicants shall report to Narcotics Control Bureau, Mumbai, once in a month on first Saturday of the month between 11.00 a.m. to 1.00 p.m. till further orders;
iv) Applications stand disposed of accordingly.
10. It is clarified that the observations made in this order are only for considering the applications for bail and the trial Court shall not be influence by the same during the trial.
11. This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
( PRAKASH D. NAIK, J. )