Gujarat High Court
Shahnawaz @ Sanu Aalamkhan Pathan vs State Of Gujarat on 4 March, 2021
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/CR.MA/19271/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 19271 of 2020
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SHAHNAWAZ @ SANU AALAMKHAN PATHAN
Versus
STATE OF GUJARAT
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Appearance:
ABRAR G SAIYED(9571) for the Applicant(s) No. 1
Z L KHAN(7966) for the Applicant(s) No. 1
MR.H.K.PATEL, APP, (2) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 04/03/2021
ORAL ORDER
(1) The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with FIR being I-CR No.11191011200077 of 2020 registered with D.C.B. Police Station, Ahmedabad City for offence under Sections 20(b), 8(C) and 29 of the NDPS Act.
(2) Learned advocate for the applicant submits that the applicant is innocent and falsely roped in the serious offence more particularly when the applicant is not in conscious possession of the contraband substance. It is submitted that the investigation is concluded and charge-sheet is filed and hence, there is no question of now interfering with the evidence on record. It is submitted that the entire investigation is based on false premise with an aim to implicate the applicant falsely. It is submitted that upon the Page 1 of 7 Downloaded on : Wed Aug 25 01:14:10 IST 2021 R/CR.MA/19271/2020 ORDER receipt of the information, the investigating authority has left at 4:30 p.m. for Hotel Silver Spring and as per the Panchnama, team had first gone to hotel Silver Spring and thereafter at the house of the applicant and completed panchnama at 1:00 a.m. on 20.07.2020. However, the running panchnama is silent on the time consumed at hotel Silver Spring. Drawing attention to the panchnama, it is submitted that considering the time spent by the team at hotel Silver Spring, the officers could not reach the residence of the applicant before 22:00 hours. However, CCTV Camera placed at the residential premises of the applicant shows the presence of the applicant at 15:47 hours. He therefore, drew attention of this Court to such photographs placed on record at Annexure-D. It is also submitted that the investigation cannot be relied upon because in the FIR the applicant is shown as absconding however, in the communication placed at page No.38 which is a letter of the Investigating Officer, it is narrated that the applicant is sent for Covid test. It is lastly submitted that when the aforesaid aspect of discrepancy in time is also evident from the log book of the vehicle of the raiding party which indicates that even at 12:00 a.m. the car was still at hotel Silver Spring.
Page 2 of 7 Downloaded on : Wed Aug 25 01:14:10 IST 2021R/CR.MA/19271/2020 ORDER (3) Learned Additional Public Prosecutor opposes the application stating that the offence is of commercial quantity of Mephedrone and therefore, of very serious nature. It is submitted that the panchnama clearly indicates the statutory obligation by the raiding party has been complied with. He submits that the brother of the applicant whose statement is recorded has taken the team to the flat of the applicant from where the applicant was found missing and had made recovery including recovery of cash of Rs.4,16,000/-, small zip locked pouches in large quantity meant for packing of the narcotic substance. Insofar as the discrepancy with regards to timing mentioned in the Covid Test communication is concerned, it is submitted that as the raid has prolonged well beyond midnight with the change in date and while following the Covid guidelines for effecting the arrest, arrest has been shown accordingly.
(4) The Court has considered rival submissions of the parties and perused the documents placed on record. It is the case that at 01:00 hour on 20/07/2020, the accused Nos.1, 2, 3 as mentioned in column No.3, in Nisan Datsun Ready Go motorcar possessed by them bearing registration No. MH.04.HX.8211, took the illegal consignment of 342 gram-374 ml.gram Methamphetamine worth of Rs.34,23,740/- from the wanted accused Soyeb Bhori Page 3 of 7 Downloaded on : Wed Aug 25 01:14:10 IST 2021 R/CR.MA/19271/2020 ORDER residing at: Mumbai without pass-permit for giving its delivery to Shahnawaz @ Shanu S/O Alamkhan Pathna residing at: House No.1, Hamid Flat, Shahpur Bycentre, Zulaivada, Sahpur, Ahmedabad. These three accused persons stayed in room No. 112 of Silver Spring Hotel located near Shahalam Toll Plaza in Ahmedabad city. During the police raid the accused persons were caught with the Muddamal article (1) the illegal consignment of 342 gram- 374 ml.gram Methamphetamine worth of Rs.34,23,740/- (2) Total case Rs.59,700/-, (3) mobile phones in four quantity worth of Rs.19,500/-, (4) Nisan Datsun Ready Go motorcar bearing registration No. MH.04.HX.8211 worth of Rs.3,00,000/-, (5) R.C. Book of Nisan Datsun Ready Go motorcar worth of Rs.00-00, (6) Three copies of Aadhar Card worth of Rs.00-00, (7) Driving Licence worth of Rs.00-00, (8) Pancard worth of Rs.00-00, (9) copy of the extract of Hotel Register worth of Rs.00- 00, (10) Black coloured handbag worth of Rs.00-00. Accompanying with the accused persons, the search was made in the house of the wanted accused Shahnawaz @ Shanu Alamkhan Pathna and the Muddamal article (11) cash Rs.4,16,000/-, (12) weighing machine worth of Rs.200/- (13) plastic pouches in quantity of 120 worth of Rs.00-00 (14) copy of Ration card worth of Rs.00-00 (15) Clothe bag worth of Rs.00-00 were seized totaling to Rs.42,19,140/- of the Muddamal was recovered. All the accused persons abetted one another in furtherance of the offence and thereby committed the offence.
Page 4 of 7 Downloaded on : Wed Aug 25 01:14:10 IST 2021R/CR.MA/19271/2020 ORDER (5) It is submitted that at the time when raid was carried out at hotel Silver Spring upon the information, at that stage, the applicant was not available at the scene and hence, it is reflected that he is wanted. This does not in any way makes the case of the applicant any stronger in view of the evidence available with the Investigating Agency. From the evidence on record, it appears that the applicant's role was to sale the narcotic substance in retail by converting into the small packages for which material has been recovered from the residential premises of the applicant and in this connection, statement of his brother Sahbazkhan has been recorded. The premises which were locked were open with the keys provided by Shabazkhan and thereafter, upon inspection, packing material as well as cash amount has been recovered from the premises. The investigation case papers indicated mobile phone contact of the applicant with the co-accused which prima-facie establishes that the co-accused who were in possession of the narcotic substance were in live contact with the applicant and were to deliver contraband to the applicant. Therefore, it is not correct to say that only on the basis of statement of co-accused, the applicant is implicated.
Page 5 of 7 Downloaded on : Wed Aug 25 01:14:10 IST 2021R/CR.MA/19271/2020 ORDER (6) The explanation offered by the applicant
towards the recovery of cash from the house of the applicant is also vague and not reliable as the applicant stated that the amount was the consideration received against the sale of the ornaments of the wife of the applicant. Considering the commercial quantity of Mephedrone being 324.374 grams and telephonic mobile contact of the applicant with the co-accused persons and recovery of packing material and cash amount from the residence of the applicant are sufficient to prima-facie involved the applicant in this offence.
(7) The ground of the officers of raiding party being present at the residence from the CCTV footages and the timings recorded there under especially photographs showing on 19.07.2020 at 9:46 p.m. and photographs of the same day at 9:30 p.m. to 9:50 p.m. which according to the applicant is the persons of the officers of the Investigating Agency. Merely presence at that time cannot be doubted on the basis of argument made that the since drawing of panchnama itself of the hotel would take more than four-five hours after the raid at hotel Silver Spring. The presence of the team of the Investigating Agency at a particular time would render the entire investigation to be doubtful.
Page 6 of 7 Downloaded on : Wed Aug 25 01:14:10 IST 2021R/CR.MA/19271/2020 ORDER (8) In view of the aforesaid and considering the provisions of the NDPS Act more particularly Section 37 of the Act, nothing is brought on record to indicate that there existed a reasonable ground to believe that the applicant is not involved in the offence.
(9) In view of the aforesaid, no case is made out to exercise discretion in favour of the application as the concerned Sessions Court has given cogent and convincing reasons while rejection the application of the applicant. The application is hereby dismissed.
(A.Y. KOGJE, J) SIDDHARTH Page 7 of 7 Downloaded on : Wed Aug 25 01:14:10 IST 2021