Bombay High Court
Abdul Mohammed Shaikh vs Union Of India And Anr on 5 May, 2021
Author: Prakash D. Naik
Bench: Prakash D. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 102 OF 2020
Abdul Mohammed Shaikh .. Applicant
Vs.
Union of India & Anr. .. Respondents
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Mr. Aabad Ponda, Senior Advocate i/b Mr. Ayaz Khan,
Advocate for Applicant.
Mr. Shreeram Shirsat, Special P.P. for UOI/Respondent No.1.
Shri. Y.M. Nakhwa, A.P.P. for the State-Respondent.
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CORAM : PRAKASH D. NAIK, J.
RESERVED ON : 28th JANUARY, 2021
PRONOUNCED ON: 5th MAY, 2021
PC.
1. This is an application for bail. The applicant is arrested
on 24.12.2016 in connection with C.R. No.12 of 2016
investigated by NCB. Complaint is filed for the offences
punishable under Sections 8(c), 20(c), read with Section 29 of
the Narcotics Drugs and Psychotropic Substances (for short
"NDPS") Act. The applicant was arraigned as accused No.5.
The case is numbered as NDPS Special Case No.20 of 2017.
2. The brief facts of the prosecution are as follows: -
(a) The Officers of the Respondent received an information
that on 24.08.2016 a lady named Mehbooba along with
her two children and an old lady named Mehroon is
suspected to be travelling in last ladies General coach of
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Paschim Express. She is suspected to be carrying about
40 kgs charas in her luggage and will alight at Borivali
Station. She is about to deliver the said quantity of
charas to a person named Pappu @ Sajid Bhai.
(b) Based on the said information officers of the respondent
arranged a raid. The train arrived at 2.00 pm. one lady
with two children and old lady got down from train. Man
aged about 35-40 years approached them. He took bags
from lady. NCB team encircled them. Ladies revealed
them names as Mehbooba and Mehrun. The third person
disclosed his name as Pappu. They were appraised about
right to have search in presence of Magistrate or Gazetted
officer.
(c) Accused No.1 resulted in recovery of a black coloured
plastic bag having 10 bundles wrapped in white tape.
That from each bundle, one ball was taken for purpose of
testing. That on testing the same was found to be
charas. The balls recovered from bag weighed 02.200
kgs. 2 samples of 24 gms. each were drawn and the same
were marked as S-1 and S-2. The total weight of all the
balls was 10.922 kgs.
(d) The accused No.2 was found with a red colour bag having
10 bundles wrapped in white tape. From each bundle,
one ball was taken for purpose of testing. On testing the
same was found to be Hashish/charas. 2 samples of 24
gms and the same were marked as S-3 and S-4. The
total weight of all the balls was 10.922 kgs. search of
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Mehrun was conducted. Red coloured bag was recovered.
The bag was containing 2.050 kgs Hashish. The total
weight was 10.472 kgs. Pappu was found in possession of
2.100kgs.
3. The applicant had preferred an application for bail before
the Special Court under the NDPS Act which has been
rejected, by order dated 11.11.2019.
4. Mr. Ponda Senior Advocate representing the applicant
urged following submissions: -
(i) There is no recovery of contraband from the applicant.
(ii) The applicant is in custody for more than four years.
(iii) The applicant is arrested in three cases. In one case
he has been granted bail.
(iv) The applicant is 70 years old person. The trial would
take time to conclude.
(v) Except the statement of the accused and the co-
accused recorded under Section 67 of the NDPS Act,
there is no evidence against the applicant. Statement
under Section 67 of the NDPS Act is not legally
admissible. It cannot be used as a confession against
the accused.
(vi) The accused No.6 who is also implicated on the basis
of statement of accused under Section 67 of the NDPS
Act has been granted bail by this Court. The said
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order has attained finality.
(vii) Learned counsel relied upon the following decisions:-
(i) Tofan Singh Vs. State of Tamil Nadu delivered
in Criminal Appeal No.152 of 2013.
(ii) Order dated 21.12.2020 passed by this Court in
Bail Application No.198 of 2019.
(iii) Order dated 28.03.2007 passed by This Court in
Criminal Revision Application No.11 of 2007.
(iv) Order dated 02.12.2020 passed by Supreme
Court in Criminal Appeal No.822 of 2020.
(v) Order passed by Madhya Pradesh High Court in
the Case of Dharmendra Kumar Prajapat Vs.
State of Madhya Pradesh dated 24.11.2020.
(vi) Order passed by High court of Karnataka in
Criminal Petition No.6322 of 2020.
(vii) Order dated 07.02.2020 passed by Supreme
court in the case of Chitta Subhas Vs. State of
West Bangal in Criminal Appeal NO. 245 of 2020.
(viii) Order dated 14.06.2019 passed by this Court
granting bail to co-accused Arif Shaikh in Bail
Application No.1305 of 2018.
5. Mr. Shirsat learned counsel for the respondent No.1
submitted that there is sufficient evidence against the
applicant. He is involved in three cases. The statement of the
applicant and the co-accused recorded under Section 67 of
NDPS Act shows his involvement in the crime. The offence is
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of serious nature. Section 37 of the NDPS Act create
restrictions on grant of bail. The submissions that the
statement under Section 67 of the NDPS Act is not admissible
in evidence or it cannot be used as confession is required to be
contested during trial. At the stage of bail, the statement
cannot be discarded. The applicant and the co-accused had
acted in connivance with each other. The charge of conspiracy
has been invoked in this case. There are calls between the
accused. The prosecution case cannot be disbelieved at this
stage. The trial would commence within short span of time.
Case is due for framing of charge.
6. Learned counsel relied upon the following decisions: -
(1) Order passed by High Court of Kerala dated
14.01.2021.
(2) Order passed by Gauhati High Court dated
20.11.2020 in Bail Application No.1610 of 2020.
(3) Order dated 15.12.2020 passed in Criminal Bail
Application No.46296 of 2020.
(4) Judgment of Supreme Court in the case of Satpal
Singh Vs. State of Punjab delivered in Criminal
Appeal No.462 of 2018 on 27.03.2018.
(5) Decision dated 30.05.2018 passed by Punjab and
Haryana High Court in the case of Mandeep Singh
@ Naterpal Vs. State of Punjab.
(6) Order passed by Punjab and Haryana High Court
in the case of Amrik Ram Vs. State of Haryana
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dated 11.09.2020.
(7) Order dated 08.11.2019 passed by Delhi High
Court in the case of Anil Sharma Vs. The State.
(8) Order dated 07.10.2020 passed by this Court in
the case of Showik Chakraborty Vs. Union of
India and others in Bail Application (St.) No. 2387
of 2020.
7. The applicant is in custody from 24.12.2016. The
accused Nos.1, 2 and 3 were arrested on 26.08.2016. The
involvement of the applicant was disclosed allegedly through
the statement of co-accused. The applicant was allegedly
involved in Cr. No.12 of 2016, 13 of 2016 and 17 of 2016. He
was arrested in all these cases. The accused No.6 was granted
bail by this Court. The application for bail preferred by the
applicant was rejected by the Sessions Court, primarily on the
ground that there is charge of conspiracy and statements of
the accused recorded under Section 67 of the NDPS Act show
the complicity of the applicant in the crime. It is not in dispute
that there is no recovery of contraband from the applicant in
the present case or in the other cases. The applicant has been
directed to be released on bail in C.R. No. 17 of 2016. The
statement of applicant and co-accused are in the nature of
confession.
8. The contention of the applicant is that the statements of
the applicant and the co-accused recorded under Section 67 of
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the NDPS Act have no sanctity of law. The statements are not
admissible in evidence. The averments in statements which
are in the nature of confession cannot be relied upon. If the
statements are not admissible in evidence, the question of
examining the said statement during the trial, does not arise.
The decision relied upon by the learned counsel for the
respondents are contrary to the recent decision of the Apex
Court in the case of Tofan Singh Vs. State of Tamil Nadu
(supra). There is no other corroborative evidence showing
complicity of the applicant. The applicant cannot be convicted
on the basis of such statements and therefore the rigor of
Section 37 of NDPS Act would not cause any impediment in
granting bail to the applicant. He is in custody for substantial
period of time and in the absence of any recovery from him,
the prolonged detention would violate Article 21 of
Constitution of India.
9. Section 67 of the NDPS Act reads as follows: -
"67. Power to call for information, etc. Any officer
referred to in section 42 who is authorised in this behalf
by the Central Government or a State Government may,
during the course of any enquiry in connection with the
contravention of any provisions of this Act,
(a) call for information from any person for the purpose
of satisfying himself whether there has been any
contravention of the provisions of this Act or any rule or
order made thereunder;
(b) require any person to produce or deliver any
document or thing useful or relevant to the enquiry;
(c) examine any person acquainted with the facts and
circumstances of the case."
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The aforesaid provision would indicate that the officer referred
to in Section 42 who is authorized by the Government may
during the course of inquiry in connection with contravention
of the provision of NDPS Act call for information from any
person for the purpose of satisfying himself whether there is
contravention of the provision of the Act or require any person
to produce or deliver any document or thing useful in the
inquiry and to examine any person acquainted with the facts
and circumstances of the case.
10. Section 24 of the Evidence Act relates to confession
caused by inducement, threat or promise. Section 25 states
that confession to Police Officer not to be proved. Section 26
referred to confession by accused while in custody of Police not
to be proved against him. Sections 25 and 26 can be quoted
as follows:-
"25. Confession to police-officer not to be proved. No
confession made to a police-officer, shall be proved as
against a person accused of any offence."
"26. Confession by accused while in custody of police
not to be proved against him. No confession made by
any person whilst he is in the custody of a police-
officer, unless it be made in the immediate presence of
a Magistrate, shall be proved as against such person."
11. The Apex Court in the case of Tofan Singh Vs. State of
Tamil Nadu (supra) has adjudicated issue whether statement
recorded under Section 67 of the NDPS Act can be used as
confessional statement in the trial for an offence under NDPS
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Act. In paragraph No. 59 of the said decision, it is observed
that the marginal note to Section 67 indicates that it refers
only to the power to "call for information, etc.". The Court then
referred to the decision of the Supreme Court in the case of
K.P. Varghese Vs. Income Tax Officer, Ernakulam and Anr.
(1981) 4 SCC 173, wherein it was observed that marginal note
is an important internal tool for indicating the meaning and
purpose of a section in a statute, as it indicates the "drift" of
the provision. In paragraph 60, it was observed that it is only
an officer referred to in section 42 who may use the power
given under Section 67 in order to make an "enquiry" in
connection with the contravention of any provision of this Act.
The word "enquiry" has been used in Section 67 to differentiate
it from "inquiry" as used in Section 53-A, which is during the
course of investigation of offences. As a matter of fact, the
notifications issued under the Act soon after the Act came into
force, specifically speak of the powers conferred under section
42(1) read with Section 67 of NDPS Act. This is an important
executive reading of the NDPS Act, which makes it clear that
the powers to be exercised under Section 67 are to be exercised
in conjunction with the powers that are delineated in Section
42(1). The Court then analysed the powers of the officer under
Section 42 and interpreted Section 67(c) of NDPS Act. It was
observed that Section 67 of NDPS Act is at an antecedent stage
to the "investigation", which occurs after the concerned officer
under Section 42 has "reason to believe", upon information
gathered in an enquiry made in that behalf, that an offence
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has been committed. The expression used in Section 67(c) is
"examine" any person acquainted with the facts and
circumstances of the case. The "examination" of such person is
again only for the purpose of gathering information so as to
satisfy himself that there is "reason to believe" that an offence
has been committed. This can, by no stretch of imagination,
be equated to a statement under Section 161 of Cr.P.C. The
Apex Court examined the scope of Sections 161, 162 and 163
of Cr.P.C. It is further observed that if a Police Officer,
properly so-called, were to investigate an offence under the
NDPS Act, all the safeguards contained in Sections 161 to 164
of the Cr.P.C. would be available to the accused, but that if the
same police officer or other designated officer under Section 42
were to record confessional statements under Section 67 of the
NDPS Act, these safeguards would be thrown to the winds. An
investigation conducted by the regular police force of a State
qua a person trafficking in ganja. If the same person were to
be apprehended with ganja on a subsequent occasion, this
time not by the State police force but by other officers for the
same or similar offence, the safeguards contained in Sections
161 to 164 of the Cr.P.C. would apply insofar as the first
incident but would not apply to the subsequent incident.
Since, second time, the investigation done by other officers and
not by the State Police Force. This example would demonstrate
manifest arbitrariness in the working of the statute, leading to
a situation where, for the first incident, safeguards available
under the Cr.P.C. come into play because it was investigated
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by the local State police, as opposed to officers other than local
police, who investigated the second transaction. The Court
referred to another example viz. if X and Y are part of a drug
syndicate and X is apprehended in the state of Punjab by the
local state police with a certain quantity of ganja, may is
apprehended in the state of Maharashtra by Officers other
than state police, again with certain quantity of ganja which
comes from the same source, the investigation by the State
police in Punjab would be subject to safeguards contained in
the Cr.P.C. but the investigation into the ganja carried by Y in
Maharashtra would be carried out without any such
safeguards, owing to the fact that an officer other than the
local police investigated into the offence. These anomalies are
real and not imaginary, and if a statute is so read as to give
rise to such anomalies, it would necessarily have to be struck
down under Article 14 of the Constitution as being
discriminatory and manifestly arbitrary. The Court adverted to
Section 53-A of the NDPS Act which relates to relevancy of
statements under certain circumstances and observed that
Section 53 and 53-A of the NDPS Act, when read together,
would make it clear that Section 53-A is in the nature of an
exception to sections 161, 162 and 172 of the Cr.P.C. Section
53(1), invests certain officers or classes of officers with the
power of officer in charge of a police station for investigation of
offence under the NDPS Act, refers to Chapter XII of the
Cr.P.C., of which Sections 161, 162 and 172 are a part. Under
Section 162(1) of Cr.P.C. statements that are made in the
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course of investigation are not required to be signed by the
person making them and under Section 53-A they can be
signed by the person before the officer empowered under
Section 53. It is only in two circumstances [under Section 53-
A(1)(a) and (b)] that such statement is made relevant for the
purpose of proving an offence against the accused: it is only if
the person who make the statement is dead, cannot be found,
is incapable of giving evidence; or is kept away by the adverse
party, or whose presence cannot be obtained without delay or
expense which the Court considers unreasonable, such
statement becomes relevant.
12. The Apex Court then dealt with the issue whether the
designated officer under Section 53 of the NDPS Act can be
said to be a Police Officer. The Court discussed ratio lead down
in several decisions which are quoted therein and observed
that despite the fact that the decision of Raj Kumar Karwal
Vs. Union of India (1990) 2 SCC 409, notices the fact that
the NDPS Act prescribes offences which are "very severe" and
that Section 25 is a wholesome protection which must be
understood in a broad and popular sense, yet it arrives at a
conclusion that the designated officer under Section 53 of the
NDPS Act cannot be said to be police officer under section 25
of the Evidence Act. The Court further observed that the Apex
Court in the said decision did not properly appreciate the
distinctions that arise between the investigative powers of
officers who are designated in statutes primarily meant for
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revenue or railway purposes, as against officers who are
designated under Section 53 of the NDPS Act. Section 53 is
located in a statute which contains provisions for the
prevention, detection and punishment of crimes of a very
serious nature. Even if the NDPS Act is to be construed as a
statute which regulates and exercises control over narcotic
drugs and psychotropic substances, the prevention, detection
and punishment of crimes related thereto cannot be said to be
ancillary to such object, but is the single most important and
effective means of achieving such object. The said decision
failed to notice Section 53-A of the NDPS Act and falls into
error when it states that the powers conferred under the NDPS
Act can be assimilated with powers conferred on customs
officers under the Customs Act. When Sections 53 and 53A
are seen together in the context of a statue which deals with
prevention and detection of crimes of a very serious nature, it
becomes clear that these sections cannot be construed in the
same manner as sections contained in revenue statues and
railway protection statues. The language of Section 53(1) is
crystal clear, and invests the officers mentioned therein with
the powers of "an officer-in-charge of a police station for the
investigation of the offences under this Act". The Apex Court
then referred to the expression 'officer-in-charge of a police
station' defined under Sections 2(o) and 2 (r) of the Cr.P.C. The
Court also refers to Section 173(2) of the Cr.P.C. and Section
36-A of the NDPS Act. On detailed analysis of several
provisions of NDPS Act and Cr.P.C., provision of Customs Act,
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POTA and TADA Act, the Apex Court held that arrive to at the
conclusion that a confessional statement made before an
officer designated under Section 42 or Section 53 can be the
basis to convict a person under the NDPS Act, without any
non-obstante clause doing away with section 25 of the
Evidence Act, and without any safeguards, would be a direct
infringement of the constitutional guarantees contained in
Articles 14, 20(3) and 21 of the Constitution of India. The
previous decision in the case of Kanhailala Vs. Union of India
(2008) 4 SCC 668 and Raj Kumar Karwal (supra) do not state
the law correctly, and are thus overruled. Other judgments
that expressly refer to and relied upon by the aforesaid
judgments or upon the principles laid down therein also stand
overruled. It was further observed the Court further gave
finding that the judgments of Noor Aga Vs. State of Punjab
(2008) 16 SCC 417 and Nirmal Singh Pehlwan Vs.
Inspector, Customs (2011) 12 SCC 298 are correct in law.
13. The Court then answered the reference by stating as
follows:-
"(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
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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."
14. The respondents have contended that the validity of the
statement under Section 67 of the NDPS Act has to be
considered during the trial. The Apex Court on detailed
analysis has held that the officers who are invested with
powers under Section 53 of the NDPS Act are police officers
and any confessional statement made to them would be barred
under Section 25 of the Evidence Act and cannot be taken into
account in order to convict the person. The 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. If the statement under Section 67 cannot be relied
upon as confessional statement in the trial, the question of
determining the validity at the trial does not arise. It is true
that there may be evidence against the person other than the
version reflected in the statement recorded under Section 67 of
the NDPS Act. However, in the absence of any other evidence
showing involvement of the accused, he need not be subjected
to custody.
15. It is pertinent to note that statement of accused No.4 was
also recorded under Section 67 of the NDPS Act. He was also
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shown to be involved in all the three cases in which applicant
has been impleaded. He has been granted bail by the Sessions
Court. The prosecution had also relied upon the similar
circumstances, as also the statements under Section 67 of the
NDPS Act against accused No.6 Arif Abdul Shaikh in the
present case who has been granted bail by the Trial Court.
The case of the applicant cannot be discriminated. It is also
pertinent to note that applicant has been granted bail in NDPS
Special Case No.54 of 2017.
16. In the light of the observation of the Apex Court in the
case of Tofan Singh (supra) the submissions of learned
counsel for the respondent cannot be accepted. In the case of
Muhammed Asarudheen Vs. State of Kerala decided by High
Court of Kerala vide order dated 14.01.2021, it was observed
that the accused had made repeated applications for bail. The
contention was raised that Section 50 was not complied and
the statement under Section 67 is not admissible in evidence.
The Kerala High Court has observed that the confessional
statement can be used as corroborative piece of evidence,
provided that there are other materials available. The facts of
this case indicate that there was recovery of contraband.
There is no other cogent material to corroborate statement
under Section 67 of NDPS Act in the present case. The
observation that confession statement can be used as
corroborative piece of evidence is contrary to ratio of the
aforesaid decision and well established principles of law. In
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the decision of the Gauhati High Court in the case of Senaul
Sekh Vs. Union of India it was observed that investigation
prima facie established the involvement of the accused in
hatching of conspiracy and commission of trafficking drugs
and presumption can be drawn against the accused and rigor
of Section 37 of NDPS Act will come into play. The NCB had
contended that case is not solely based on statement of other
accused under Section 67 of NDPS Act. The order in the case
of Shahjad Vs. State of Uttar Pradesh in Misc. Bail
Application No.46296 of 2020 refers to the recovery from joint
possession of the accused. On the facts it cannot be relied
upon. Although, the decision in the case of Tofan Singh was
relied upon, Court observed that the said decision relates to
statement under Section 67 of the NDPS Act which cannot be
used as confessional statement during trial. In Satpal Singh
Vs. State of Punjab the Apex Court has observed that the
High Court has not taken into consideration the effect of
Section 37 of NDPS Act. In the case of Mandeep Singh Vs.
State of Punjab (supra) decided by High Court of Punjab and
Haryana it was observed that, although there was no recovery
from accused, his name cropped up during investigation being
part of international gang getting contraband from smugglers
across the border and distributing it in India. The other
decision are relating to nature of evidence, charge of
conspiracy and embargo of Section 37 of NDPS Act.
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17. In this case statements of accused Nos.1 to 3 were
recorded under Section 67 of NDPS Act. Their supplementary
statements were also recorded under Section 67 of the Act.
Statement of accused No.4 Abdul Karobari was recorded on
16.10.2016. Statement of applicant was recorded on
23.12.2016 and statement of Arif Abdul Shaikh (Accused No.6)
was recorded on 24.12.2016. Accused No.6 preferred
application for bail before this Court. He was granted bail by
this Court vide order dated 14.06.2019 in Bail Application
No.1305 of 2018. While granting bail to him it was observed
that, no contraband was recovered from him in all the three
cases. He was arrested solely on the statement of the co-
accused recorded under Section 67 of the NDPS Act. Charge
of conspiracy was applied to the accused. The applicant was
granted bail by trial Court by order dated 15.12.2018 in NDPS
Special Case No. 54 of 2017. The Court had observed that,
accused No. 1 to 3 therein were granted bail and recording of
statement under Section 67 of the Act was not proper. The
confessional statements of the co-accused cannot be treated as
incriminating piece of evidence against the applicant. Arif
Abdul Shaikh (Accused No.6 in the present case) was granted
bail by trail Court by order dated 09.05.2018 in NDPS Special
Case No.54 of 2017. He is the son of applicant Arif Shaikh was
also granted bail by trial Court in NDPS Special Case No. 39 of
2017 vide order dated 23.08.2017.
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18. The prosecution is relying on CDR and alleged calls
between the accused. In the absence of direct evidence, no
adverse inference could be drawn against applicant in the
absence of cogent evidence.
19. Learned counsel for applicant has relied upon certain
precedents referred to hereinabove. In Bail Application No.
198 of 2019 this Court granted bail to the accused relying
upon decision of apex Court in the case of Tofan Singh (supra).
It was observed that there is no corroborative evidence to
substantiate the averments in statement of accused. In the
case of Irfan Pathan this Court vide order dated 28.03.2007
has observed that the prosecution is relying on telephone calls
to the accused. There was no material to implicate the
accused. There is no material regarding conversation during
telephone calls, in such case relying on records which show
that the calls were made by co-accused to the said applicant
without further material would not be sufficient to implicate
the accused. In the case of Seesh Singh @ Mor (supra) the
Supreme Court had granted bail to the accused as it is only
through statement of co-accused his involvement was sought
to be made out. The Madhya Pradesh High Court in the case
of Dharmendra Kumar Prajapat (supra) the Court referred to
decision in the case of Tofan Singh (supra) and observed that,
the prosecution is at an even greater disadvantage as the
statement is hit by section 25 of Evidence Act in pursuant to
above decision of Supreme Court. Independent of the
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statement, it is only the call detail records. The CDR only
shows conversation between accused. The Karnataka High
Court in Criminal Writ Petition No. 6322 of 2020 has
considered the decision in the case of Tufan Singh Vs. State
of Tamil Nadu (supra) the submissions urged before the Court
at the instance of the accused is that in the case of Tufan
Singh (supra) it was held that the officer invested with power
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 the accused
under the NDPS Act. In view of decision in the case of Tufan
Singh (supra) the statement recorded under Section 67 of the
NDPS Act are nothing but statements under Section 161 of
Cr.P.C. and cannot be used by prosecution for any purpose.
The Court noted that the co-accused were granted bail in the
case of Gangadhar @ Gangaram Vs. State of Madhya
Pradesh 2020 SCC OnLine 623, it was held that though there
is presumption against the accused of culpability under
Secitons 35 and 54 of the NDPS Act to explain possession
satisfactorily are rebuttable, it does not dispense with the
obligation of the prosecution to prove the charge beyond all
reasonable doubt. In view of law laid down in Tufan Singh and
on the ground of parity, the accused was granted bail. In the
case of Chitta Biswas @ Subhas Vs. State of West Bengal
(supra) it was observed that by the Supreme Court that the
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accused was found in possession of Narcotics substance i.e. 46
bottles of phensydryl cough syrup containing codeine mixture
above commercial quantity. The accused was arrested in July
2018 and the prosecution has examined four witnesses.
However, the accused was granted bail. Considering the fact
and circumstance on record.
20. The applicant is senior citizen aged about 70 years. The
accused No.6 Arif Abdul Shaikh has been granted bail by this
Court. The prosecution was also relying upon statement of the
accused and co-accused recorded under Section 67 of the
NDPS Act against the said accused. The applicant is in
custody for more than four years. Undisputedly there is no
recovery of contraband from the applicant. In the light of the
observation made hereinabove, rigors of Section 37 of the
NDPS Act would not cause any impediment in granting bail to
the applicant.
ORDER
(i) Bail Application No.102 of 2020 is allowed.
(ii) The applicant is directed to be released on bail in connection with NDPS Special Case No. 12 of 2016 investigated by Narcotics Control Bureau, Mumbai on executing P.R. bond in the sum of Rs. 50,000/- with one or more sureties in the like amount;
(iii) The applicant shall report to Narcotics Control Bureau, Mumbai, once in three months on first Saturday of the ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 08:20:51 ::: This Order is modified/corrected by Speaking to Minutes Order dated 13/05/2021 Ethape 22 18-BA-102-2020 month between 11.00 am. to 1.00 pm. till further orders;
(iv) The applicant shall appear before the Trial Court regularly on the date of the hearing unless exempted by the Court.
(v) Application stands disposed of accordingly.
(vi) At this stage learned counsel for the respondent makes a request for stay of the order. Since the prosecution intend to challenge the order before Higher Court. The request for stay is strongly opposed by learned Advocate for applicant. The applicant is aged about 70 years. He is in custody for more than 4 years. The request for stay is rejected.
(PRAKASH D. NAIK J.) ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 08:20:51 :::