Bombay High Court
Jitendra Jain vs Ncb And Anr on 26 July, 2022
Author: Bharati Dangre
Bench: Bharati Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.2682 OF 2021
Jitendra Jain .. Applicant
Versus
NCB & Anr. .. Respondents
...
Mr.Taraq Sayed with Ms.Ashwini Achavi i/b Mr.Adwait
Tamhankar for the Applicant.
Mr.Shreeram Shirasat with Mr.Amandeep Singh Sra and
Mr.Shekhar V. Mane for the NCB/Respondent No.1.
Ms.A.A.Takalkar, A.P.P. for the State/Respondent No.2.
...
CORAM: BHARATI DANGRE, J.
DATED : 26th JULY, 2022 P.C:-
1. The applicant came to be arrested on 18/12/2020 in C.R.No.16 of 2020, registered under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "the NDPS Act"). He seeks his release on bail on the ground that he came to be arraigned as an accused, on statement of the co-accused, who alleged that the applicant is supplier of 0.585 kg. of Charas/Hashish, but nothing incriminating was recovered from him.
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2. Mr.Taraq Sayed, learned counsel for the applicant, while advancing his argument in support of the applicant, would submit that there is no material with the respondents to detain him in custody, as case of the prosecution is based on the alleged voluntary statement of Anuj Keshwani and that of the applicant recorded under Section 67 of the NDPS Act, where his role of supply and procurement of Charas has surfaced. Submitting that in the wake of the decision of the Hon'ble Apex Court in the case of Tofan Singh Vs. State of Tamilnadu 1, where the law on the point has been well settled to the effect that the statement recorded under Section 67 of the NDPS Act is not admissible as confession, learned counsel would submit that the applicant deserve his release on bail It is submitted that the copy of the charge-sheet, which run into multiple volumes, only contain the above material, which is not suffcient to sustain a conviction under Sections 8(c) read with Sections 20(b)(ii) B, 27, 27A, 28 & 29 of the NDPS Act, as no contraband has been recovered at his instance. Referring to the statement of Anuj Keshwani (accused No.9), who has roped in the applicant as supplier of the contraband, the learned counsel would submit that the said statement has been retracted, and in any case, the commercial quantity of Charas 1 AIR 2020 SC 5592 M.M.Salgaonkar ::: Uploaded on - 05/08/2022 ::: Downloaded on - 05/01/2023 08:51:09 ::: 3/15 45 BA-2682-21.doc is 1 kg. and the Charas/Hashish allegedly supplied by the applicant to co-accused Anuj Keshwani and which is recovered at his instance, is 0.585 kg., which is less than the commercial quantity. The argument advanced is, the statement of the applicant recorded under Section 67 is the only material/which indict him, but since the said statement is not admissible, he deserve his release.
Mr.Sayed would further submit that as far as charge under Section 27A is concerned, there is no iota of evidence, which justify framing of the said charge and the position as regards "fnancing directly or indirectly", has been clarifed by this Court in case of Rhea Chakraborty Vs. Union of India 2, and it has been held that only upon a defnite act, being attributed, it would amount to 'fnancing' and this require something more than mere purchase and sale of drug and it has been held that co-accused Rhea, who had on some occasion used her money in procuring drugs and facilitated procuring of drug through her brother, was held to be, prima facie, not guilty of Section 27A of the NDPS Act. The learned counsel would submit that in the entire charge-sheet, there is not a single witness, who had alleged the applicant is involved in fnancing for illicit 2 BA(St) No.2386/2020 dtd.07/10/20 M.M.Salgaonkar ::: Uploaded on - 05/08/2022 ::: Downloaded on - 05/01/2023 08:51:09 ::: 4/15 45 BA-2682-21.doc traffcking of drug and there is no evidence to show any nexus between the applicant or any contraband whatsoever and, therefore, rigours of Section 27A of the NDPS Act will not apply to the applicant.
3. Learned counsel Mr.Shirsat appearing for the NCB, vehemently opposed the application by submitting that the act attributed to the applicant cannot be looked in isolation, of the chain of illicit traffcking, which has been established by the prosecution, on fling of the complaint. Relying upon the decision of Allahabad High Court in the case of Shailendra Gupta @ Shailu Vs. State of U.P.3, which in turn makes a reference to the decision of the Hon'ble Apex Court in the case of Union of India Vs. Ratan Mallik4, learned counsel would submit that non-recovery of contraband cannot be a ground to enlarge a person on bail and it cannot be said at this stage that, he is not guilty of the offence with which he is charged.
Mr.Shirsat would rely upon the statement of Anuj Keshwani, the co-accused who has attributed the role to the applicant as a supplier, and has stated that he brought 3-4 kg. Hashish from the applicant, since 2019 and he has made the payment of 12 to 14 lakhs approximately. Thought the 3 (2020) I.L.R. All 1311 4 (2009) 2 SCC 624 M.M.Salgaonkar ::: Uploaded on - 05/08/2022 ::: Downloaded on - 05/01/2023 08:51:09 ::: 5/15 45 BA-2682-21.doc statement has been retracted, learned counsel would submit that it would be ultimately a matter of trial. Similarly, reliance is also placed upon the statement of the applicant, recorded under Section 67, and it is denied that the same has been recorded under force or coercion. The orders passed by certain High Courts have been relied upon.
The NCB has opposed the application of the applicant on the ground that the commercial quantity has been recovered from the co-accused and, it is submitted that the audio transcript between the applicant and co-accused Anuj Keshwani is indicative of the fact that the applicant is involved in the drug peddling. As far as the transcripts are concerned, learned counsel Mr.Shirsat placed reliance upon the decision in the case of Tara Chand Vs. State of Himachal Pradesh5 wherein it has been categorically recorded that, the mafas work in a clandestine manner and once there is a call detail and investigator attributes the calls for conspiracy attracting Section 29 of NDPS Act, the burden is on the accused to repel the same.
Arguing that the menace of dangerous drugs fooding in the market has prompted the Parliament to enact a special 5 2020 SCC OnLine HP 1477 M.M.Salgaonkar ::: Uploaded on - 05/08/2022 ::: Downloaded on - 05/01/2023 08:51:09 ::: 6/15 45 BA-2682-21.doc enactment and the rigours, being imposed upon the person, accused of the offence under the said enactment, unless the mandatory requirement, as prescribed under Section 37, is adhered to, Mr.Shirsat would submit that the expression 'reasonable grounds' has received an interpretation by the Hon'ble Supreme Court to mean, something more than prima facie grounds and it contemplates substantial probable cause 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 suffcient in themselves to justify satisfaction that the accused is not guilty of the allenged offence.
Since the charge under Section 27A is made out, as the applicant was pumping money for the purposes of illicit traffcking, the argument is, his case would clearly fall within the ambit of Section 27A and it is not a case of simple sale and purchase in form of some stray dealings.
4. With the assistance of respective counsel, I have perused the complaint fled before the Special Court by the NCB, Mumbai, Zonal Unit vice case No.NCB/MZU/CR-16/2020, wherein the applicant is arraigned as accused No.26. The arrest of one Abbas Ramzan Ali Lakhani, resident of Mumbai M.M.Salgaonkar ::: Uploaded on - 05/08/2022 ::: Downloaded on - 05/01/2023 08:51:09 ::: 7/15 45 BA-2682-21.doc on 28/08/2020, by a team of NCB, Mumbai and NCB Hqrs, New Delhi, who was apprehended with 46 gram of Marijuana/Ganja in a public place, led to several persons being arrested with recovery of contraband and some cash amount in Indian currency, US Dollars, pounds and Dirhams, being recovered under the panchanama. The voluntary statements of the accused came to be recorded under Section 67 of the NDPS Act and co-accused Mohammed Kaizan Karamilahi Ebrahim disclosed the name of Anuj Keshwwani as a supplier of Ganja/Marijuana and NCB seized 0.585 kg. Charas, 270.12 gm. Ganja, 3.6 Gms THC, 0.62 gm LSD and a cash amounting to Rs.185300 INR and 5000 Indonesian Rupiah from him under panchname dated 06/09/2020. His voluntary statement under Section 67 of the NDPS Act came to be recorded, which revealed the involvement of the applicant in procuring the drugs. In the voluntary statement of the applicant, he disclosed the name of Crist Valanko Pereira @ Krish Costa @ Chris Costa and in his house search, 0.4 gms of Charas was seized.
5. In his voluntary statement, Anuj Keshwani disclosed the present applicant as a source of the drug in his possession and the applicant in his statement under Section 67, admits that he M.M.Salgaonkar ::: Uploaded on - 05/08/2022 ::: Downloaded on - 05/01/2023 08:51:09 ::: 8/15 45 BA-2682-21.doc supplied Charas/Hashish to Anuj Keshwani, which was seized by NCB on 06/09/2020. He has admitted that he received payment through Google Pay. For the co-relation between the present applicant and the co-accused, the CDRs have been collected, as it amount to evidence of the applicant, being a member of drug syndicate and drug suppliers and the CDRs establishing connect between the applicant and the other co- accused are placed on record. Anuj Keshwani, whose house search led to recovery of huge contraband and currency, disclose that he purchased Charas from the applicant and paid a sum of Rs.2,00,000/- in cash and he used to buy Charas at the rate Rs.3,000/- to Rs.4,000/- per tola (10 gram).
As far as the applicant is concerned, the complaint allege that he was supplier of Ganja and Charas to Anuj and he would procure it from Mohammad Azam and received the money through his girlfriend in UBI/Google account. His role in drug traffcking is also ascertained through digital evidence enclosed with the complaint and he face a charge of having conspired to fnance illegal traffcking and procuring, possessing, purchasing, sale, transport, consume Charas and has been charge-sheeted.
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6. I have perused the statement of the applicant recorded under Section 67 of the NDPS Act, where he states as under :-
"I want to state that I have smoked Charas since 2014. I initially purchased Charas for smoking from one Rafeek Sk. @ Geetak. I want to state that I have procured Marijuana, from one Murugan of Nehru Nagar, Vile Parle (w). I want to state that I have provided Charas to Anuj Keshwani on different occasions. I want to say that several times I have collected money in cash from Anuj Keshwani. I want to state that I have procured Charas from Manali and further distributed to Anuj and others."
He has disclosed that Hemant Shah @ Maharaj used to supply him Charas from Himachal Pradesh and he has supplied more than 2 kgs. of Charas to him from 2018 to 2020. He also admitted procurement of Cocaine from two Nigerians of Vasai, which he brought cocaine from them at the rate of Rs.2,000/- per gram and supplied it to Anuj, at the rate of Rs.2,500/- per gram.
On being confronted with the recording of phone calls, he admitted that the two are talking about drugs, money and other details.
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7. The complaint is accompanied with the copy of audio transcript between the applicant and Anuj Keshwani and when carefully read, it refer to the deal and passing of money.
Learned counsel Mr.Shirsat has placed on record the table of the telephonic contact between the applicant and co- accused Anuj which, also establish the involvement of the applicant in the subject C.R.No.16 of 2020, registered by NCB. The chart produced by Mr.Shirsat establish the connect between the applicant and Anuj Keshwani at frequent intervals from October 2019 to 14/06/2020. Not only this, since the case of the prosecution is that the applicant procured the contraband from Hemant Shah, the CDR between the two correspond to the said period from 29/10/2019 to 27/04/2020, which establish the link between the procurement and its supply.
8. Section 37 of the NDPS Act, which contain a provision for a person accused of the offence punishable under the Act, being released on bail, contemplates satisfaction of two conditions, being the Public Prosecutor has been given an opportunity to oppose the application for such release and where the Public Prosecutor opposes the application, the Court is satisfed that there are reasonable grounds for believing that M.M.Salgaonkar ::: Uploaded on - 05/08/2022 ::: Downloaded on - 05/01/2023 08:51:09 ::: 11/15 45 BA-2682-21.doc he is not guilty of such offence and that he is not likely to commit any offence, while on bail.
The Hon'ble Apex Court has clarifed the expression "reasonable grounds" in the case of Union of India through Narcotics Control Bureau, Lucknow Vs.Md.Nawaj Khan6, in the following manner :-
19. The standard prescribed for the grant of bail is 'reasonable ground to believe' that the person is not guilty of the offence. Interpreting the standard of 'reasonable grounds to believe', a two-judge Bench of this Court in Shiv Shanker Kesari (supra), held that:
"7. The expression used in Section 37(1)(b)(ii) is "reasonable grounds". The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are suffcient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged.
8. The word "reasonable" has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is diffcult to give an exact defnition of the word "reasonable".
"7. ... In Stroud's Judicial Dictionary, 4th Edn., p. 2258 states that it would be unreasonable to expect an exact defnition of the word 'reasonable'. Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the 6 Cri.Appeal No.1043/21 M.M.Salgaonkar ::: Uploaded on - 05/08/2022 ::: Downloaded on - 05/01/2023 08:51:09 ::: 12/15 45 BA-2682-21.doc jingling of a child's toy."
(See Municipal Corpn. of Delhi v. Jagan Nath Ashok Kumar [(1987) 4 SCC 497] (SCC p. 504, para 7) and Gujarat Water Supply and Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. [(1989) 1 SCC 532] [...]
10. The word "reasonable" signifes "in accordance with reason". In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd. [(2003) 6 SCC 315]
11. The court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a fnding of not guilty. It is for the limited purpose essentially confned to the question of releasing the accused on bail that the court is 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 fnding of not guilty."
(emphasis supplied)
9. The applicant is accused of Section 8(c) read with Sections 20(b)(ii) B, 27, 27A, 28 & 29 of the NDPS Act. The twin conditions as prescribed under Section 37 of the NDPS Act will have to be satisfed, before the applicant is held to be entitled for being released on bail.
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When the material compiled the charge-sheet is carefully perused, it would reveal that in the chain of the accused persons, one connecting and referring to the other, as the supplier or the purchaser, the applicant's role has clearly surfaced as supplier to co-accused Anuj Keshwani. Independent of the said connection and even if assuming for a moment at Section 67 of the NDPSA Act being kept aside, the CDR analysis of the mobile number used by the two establish that the applicant was in regular touch with the co-accused Anuj and even the transcripts clearly make a reference to the nature of conversation, revolving around the deal between them. The prosecution will establish the same by adhereing to the procedure prescribed under Section 65-B of the Evidence Act. The quantity of contraband involved in the entire C.R. is a commercial quantity and the submission of Mr.Sayed to the effect that he is responsibly only for supply of minimum/small quantity is not a ground to release him on bail.
"Reasonable grounds" in terms of Section 37(1) would mean credible, plausible and the grounds for the course to believe that the accused person is not guilty of the alleged offence. Looking to the material compiled in the charge-sheet, I am unable to persuade myself to believe that the applicant M.M.Salgaonkar ::: Uploaded on - 05/08/2022 ::: Downloaded on - 05/01/2023 08:51:09 ::: 14/15 45 BA-2682-21.doc has not committed the offence, though I am not recording a fnding of his guilt. Restricting myself to the limited purpose of considering the application for bail, I have focused on the material in the charge-sheet and considering the alleged connection between the applicant and the co-accused, I cannot weigh the evidence to reach a conclusion that he has not committed any offence. Mere absence of recovery of the contraband from the applicant is no ground to confer his liberty upon him. The applicant appears to be a part of a larger chain and he was knowing the dealers and he is one of the person in the whole chain, who was facilitating the supply of drug either procuring from the dealers directly or he was an intermediary link between the supplier and the purchaser. The investigation reveals that different dealers formed a defnite chain and the purpose of the NDPS Act, being to stop the illicit traffcking of drug, the role of the applicant, as surfacing the charge-sheet, prima facie, establish his involvement in facilitating the transaction. A direct evidence may not be available in absentia of the statements of the accused persons recorded under Section 67, but considering over all material compiled in the charge-sheet, it is not safe to conclude that there are reasonable grounds to believe that the M.M.Salgaonkar ::: Uploaded on - 05/08/2022 ::: Downloaded on - 05/01/2023 08:51:09 ::: 15/15 45 BA-2682-21.doc applicant is not guilty of the offence alleged against him and he deserves his release. The call data record and its analysis, in absence of any contrary material being shown, establish the relationship between the two and is another factor, which add to the reasonable ground for not believing that he is not guilty. True it is that the drug operators work in a clandestine manner and when prosecution established the link, it is upon the accused to repel the same, which ultimately will be a matter of trial.
The length of custody/long incarceration is no ground for releasing the applicant on bail, whose involvement is prima facie, apparent from the material compiled in the charge-sheet and there is no material to show that he will not indulge in similar activity on being released on bail
10. In the wake of the above, the application is rejected.
( SMT. BHARATI DANGRE, J.) M.M.Salgaonkar ::: Uploaded on - 05/08/2022 ::: Downloaded on - 05/01/2023 08:51:09 :::