Krunal Dinesh Sagar vs Union Of India And Anr on 8 February, 2023

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Bombay High Court

Krunal Dinesh Sagar vs Union Of India And Anr on 8 February, 2023

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.475 OF 2022
Krunal Dinesh Sagar ..Applicant
VS.
Union of India and anr. ..Respondents
------------
Adv. Ravi L. Gurnani a/w Adv. Pradeep Hingorani a/w Adv.
Reshmarani Nathani a/w Adv. Vivek Pandey i/b. Adv. Ravi
Gurnani for the Applicant.
Mr. S. H. Yadav, APP for the State.
Adv. Shreeram Shirsat a/w Adv. Amandeep Singh Sra a/w
Adv. Shekhar Mane a/w Adv. Nishi Singhvi a/w Adv. Anna
Oommen for respondent NCB.
------------
CORAM : M. S. KARNIK, J.
DATE : FEBRUARY 8, 2023
P.C. :

1. Heard learned counsel for the applicant, learned

counsel for the NCB Mr. Shirsat and learned APP for the

State.

2. This is an application for bail by the applicant-Krunal

Dinesh Sagar in connection with C.R. No.NCU/BZU/CR-21 of

2018 registered with Narcotics Control Bureau, Bombay

Zonal Unit, Mumbai (hereafter "NCB", for short) for the

offence punishable under Sections 8(c), 20(c), 23(c), 28, 29

and 30 of the Narcotic Drugs and Psychotropic Substances

Act, 1985 (hereafter "NDPS Act", for short).

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3. In all there are five accused. The applicant is the

accused No.3. The intelligence officer of the NCB received

the specific information that one person named Pappu

Chaudhary (accused No.1) would be travelling from Mau to

Mumbai by Rajratan bus and reaching near Jai Kalika Mata

Temple, Teen Hath Naka, Thane on 26/11/2018 at 7.30

hours. The information was that he would be carrying

substantial quantity of charas and he is going to deliver

charas to one person named Aniket Madan Singh (Accused

No.2) r/o Kharghar, Navi Mumbai and one person namely

the present applicant Krunal Sagar @ DJ Rawas (accused

No.3) r/o Kandivali (West), Mumbai on the same day. The

raiding party along with the NCB team waited discreetly at

the spot. For convenience and for proper appreciation, the

sequence narrated in the panchanama dated 26/11/2018

needs to be reproduced. The same reads thus :-

"At about 07.30 hrs., we noticed that one blue colour bus
bearing vehicle no.MP09P3330 arrived slowly and stopped
at a bus-stop opposite Jai Kalika Mata mandir at Teen Hath
Naka, Thane. Rajratan was written on it. The NCB officials
became alert and kept close watch from a distance.
Soon a man with dark complexion, fat body and average
height came out of the bus. He was wearing a white colour
T-shirt and grey pant and he was the only passenger

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alighting there. He was carrying a brown colour backpack
with him. Shri Rajesh Solanki had doubt about this person.
Then the suspect person moved slowly towards a boy
standing close to the stop. He was average height and thin
built. The NCB team along with us were keeping watch on
the suspect as well as the thin boy in yellow t-shirt. As the
suspect approached towards the thin boy in yellow t-shirt
and then took out a white polythene bag from his backpack
and handed over to the boy, the members of NCB Mumbai
team surrounded both of them. Shri Rajesh Solanki then
introduced himself and his team-members to both the
persons and enquired about their identity. The man who
had arrived by bus disclosed his name as Pappu Chaudhary,
R/o-Mau (M.P.) and the thin boy with yellow t-shirt who
was waiting near the stop disclosed his name as Aniket
Madan Singh, R/o-Kharghar, Navi Mumbai. Then Shri
Rajesh Solanki disclosed to both of them about the
information that he was carrying and about his intention to
search their baggage and body. Then he explained both of
them one by one about their right to be searched before a
nearest magistrate or gazetted officer but both of them
waived their right and agreed to be searched by the officer
present there.
Thereafter, Shri Rajesh Solanki conducted personal search
of Aniket Madan Singh and recovered a white polythene
bag containing two silver foil packets of square shape from
his hand. On being asked, Aniket disclosed that Pappu
Chaudhary had just delivered him two packets with about
650 grams charas.
Then, Shri Rajesh Solanki conducted personal search of
Pappu Chaudhary and found a brown colour backpack on
his shoulder. Pappu Chaudhary was told to open the
backpack and he showed another polythene bag containing
04 nos. of silver foil packets which he disclosed as about
2.5 kgs. of charas.
Shri Rajesh Solanki informed to both that charas is a
narcotics and possession and carrying of charas is highly
illegal under the NDPS Act, 1985. Immediately, Shri Solanki
enquired Pappu Chaudhary whom he was going to deliver
that 2.5 Kgs. charas, then Pappu Chaudhary disclosed that
2.5 Kgs. charas kept in his backpack is going to be
delivered to one Krunal Sagar @ DJ Rawas R/o-Kandivali
(W), Mumbai at the bus stop opposite HDFC bank near

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Western expressway bridge, Borivali national park.
Thereafter, both of them were taken into NCB vehicle along
with recovered suspected narcotics.
Full team of NCB officials led by Shri Rajesh Solanki took
Pappu Chaudhary & Aniket Madan Singh and the polythene
bags with recovered packets of charas kept in his packback
and Aniket's person and proceeded towards Western
expressway bridge, Borivali national park on his official
vehicle. We also accompanied the team. We reached near
the spot at around 09.00 hrs. and told Pappu Chaudhary to
make a call to Krunal Sagar @ DJ Rawas r/o Kandivali (W)
and asked him to come at the bus stop near the Western
expressway bridge, Borivali national park to take delivery
of charas. Pappu Chaudhary was told to stand near the bus
stop with his backpack with charas packets. After some
time, one Maruti brezza suv bearing no.MH47AB9406
arrived at the spot. We were keeping watch from a
distance. A tall and big frame man with pony tail alighted
from the brezza and approached Pappu Chaudhary and
collected a polythene bag with 04 packets of charas from
him. Immediately, the NCB Mumbai officials surrounded
both of them. Shri Rajesh Solanki introduced himself and
his team members to the tall man with pony tail by
showing ID cards and enquired about his name. The tall
man disclosed his name as Krunal Sagar @ DJ Rawas r/o-
Kandivali (W). Shri Rajesh Solanki informed him about his
intention to take personal search and also about his right to
be searched before nearest magistrate or a gazetted officer.
But Krunal Sagar waived his right and agreed to be
searched by Shri Rajesh Solanki. Shri Rajesh Solanki
conducted search and recovered a polythene bag with 04
packets of charas in it as disclosed by Krunal Sagar. Both
Pappu Chaudhary and Krunal Sagar were told to seat in the
official vehicle. Then, Shri Rajesh Solanki enquired Pappu
Chaudhary about any more charas in his custody and
Pappu Chaudhary disclosed that he is keeping about 2-3
kgs. of charas in his home at 09, Pension Pura, Mau, dstt-
Indore (M.P.). Soon Shri Rajesh Solanki informed to the
superintendent, NCB-Mumbai about the same
telephonically and requested to send a team to Mau
(Indore) for search of house of Pappu Chaudhary located at
given address at the earliest.
Thereafter, as it was day time with heavy traffic, no

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arrangement for paperwork and security, Shri Rajesh
Solanki and his team took Pappu Chaudhary, Aniket Madan
Singh, Krunal Sagar and polythene bags with silver foil
packets of Charas and his backpack to the official vehicles
and decided to proceed to NCB-Mumbai office at Ballard
estate, Mumbai.
The NCB Mumbai team, we the panchas, the 03 suspects
along with recovered narcotics reached NCB Mumbai office
in two official vehicles at around 13.30 Hrs. with consent of
03 suspects.
In the NCB Mumbai office, the polythene bag with charas
recovered from Aniket Madan Singh was taken and 02
square shape silver foil packets were taken out in our
presence. One of the packets was opened and we noticed
that bundle was wrapped with scotch-tape. It was further
containing transparent polythene with multiple balls of dark
brown substance. One of the balls was taken and a small
scrap was taken from it. It was tested with field testing kit
and the test indicated positive for charas. Then, the same
testing was conducted on each of the dark brown balls and
every time the resulted indicated positive for charas. Then
all the balls of dark brown substance in the 02 packets
recovered from Aniket Madan Singh's hand were taken and
weighed. The total weight was = 652 grams. The remaining
balls of dark brown substance purported to be Charas were
kept in a bigger transparent polythene bag.
Then, the other polythene bag with 04 nos. of silver foil
packets of narcotics recovered from Krunal Sagar @ DJ
Rawas was taken. All the 04 packets were taken out and
opened. Each of the packets was containing similar multiple
balls of dark brown substance. A small scrapping from each
of the ball was taken and tested with field testing kits. Each
time the test indicated positive for charas. The total weight
of contents of these 04 packets was = 2.348 Kgs.
Now as all the balls of dark brown substance purportedly
charas recovered from all the 06 silver foil packets were
same in colour, texture, odour and tests they were kept in
the same polythene bag and a homogenous mixture was
prepared. Then small scrapings from all the balls were
taken. Two representative samples of 24 grams each were
taken out from this mixture and kept in two separate small
zip-locked polythene pouches. Then these pouches were

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heat-sealed and kept in two separate white paper
envelopes and marked as S-1 & S-2. The contents of the
envelopes was mentioned on each of the sample envelopes.
The remaining bulk of multiple balls of dark brown
substance purported to be Charas concealed in 06 silver foil
packets were kept in the said big transparent polythene
bag and weighed. The total weight after taking out 02
samples was = 2.952 Kgs. This big transparent polythene
bag was also heat sealed and kept in a small carton-box
and marked as - M. A label mentioning the contents of the
carton-box was prepared and pasted on this carton-box.
The packing/concealing materials like silver foils, scotch
tapes and transparent polythene used to conceal the dark
brown balls of charas was kept in a carton box and marked
as - P. A label mentioning the contents was prepared and
pasted on it."
(emphasis mine)

4. The applicant thus was arrested on 27/11/2018 and

he is now in custody for more than 4 years and 2 months. I

am informed that the trial is at the stage where the draft

charges have been handed over to the trial Court but

factually the charge has not been framed. There are

approximately 19 witnesses to be examined. According to

learned counsel for the NCB there is a possibility of

examining less than 19 witnesses.

5. Though long incarceration is one of the ground urged

which directly contravenes the applicant's right to a speedy

trial, having regard to the stringent provisions of Section 37

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of the NDPS Act, the narrow parameters of the bail available

will have to be taken into consideration.

6. At the outset, it must be noticed that there are call

detail records between the accused No.1 and the present

applicant (accused No.3) and also details regarding the

monetary transaction in respect of the contraband which

the accused No.1 was to handover to the applicant. I have

to be conscious that the length of the period of his custody

or the fact that the charge-sheet has been filed may not be

the relevant considerations by themselves to be treated as

persuasive grounds for granting relief to the applicant under

Section 37 of the NDPS Act as observed by the Supreme

Court in the case of Narcotics Control Bureau vs. Mohit

Aggarwal1.

7. The factors which persuade me to take a view in

favour of the applicant for the purpose of releasing the

applicant on bail are stated hereafter. A reading of the

panchanama reproduced hereinabove reveals that 2.5 kg

charas was in the backpack of the accused No.1 (Pappu

Chaudhary) which was going to be delivered to the
1 Criminal Appeal Nos.1001-1002 of 2022

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applicant. Pappu Chaudhary (accused no.1) upon being

informed of his rights to be searched in presence of the

gazetted officer under Section 50, having waived his right,

was duly search and the substance 'charas' was recovered

from him. The charas was recovered from his backpack. The

panchanama specifically records that the said charas was

recovered from Pappu Chaudhary.

8. Learned counsel for NCB submitted that the charas

was found in the backpack and therefore Section 50 would

not be attracted (Jarnail Singh vs. State of Punjab2). So

far as recovery from the accused No.1 Pappu Chaudhary is

concerned, learned counsel for the NCB may have a point

that Section 50 of the NDPS Act will not be attracted. What

is material to note is that when the trap was laid to

apprehend the applicant, the very same polythene bag with

4 packets of charas was handed over by accused No.1 to

the present applicant which was recovered from accused

no.1. Effectively, the substance which was already seized

from the accused No.1, is handed over again to the accused

No.1, who in turn hands over the same substance to the
2 (2011) 3 SCC 521

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applicant.

9. The applicant thus was found with a polythene bag

with 4 packets of charas. The charas was found on the

person of the applicant is the same substance which was

recovered from the backpack of the accused no. 1. Though

in my prima facie view there is non-compliance of Section

50 of the NDPS Act while conducting the search of the

applicant as no one in the raiding party is a gazetted officer,

I must indicate that I have not heard learned counsel for

the NCB in detail on the issue of non-compliance of Section

50 of the NDPS Act as I am satisfied that the applicant

could be released on bail on the ground set out hereinafter.

10. The point is, once the substance was recovered from

the accused no.1, could the said substance then be again

handed over to the accused no.1 for further handing it over

to the applicant thereby enabling the officials of the raiding

party to lay a claim that the substance was found in

possession of the applicant. In my opinion, once the

substance was already recovered from the accused no.1,

the raiding party could then have proceeded against the

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applicant on the basis of other incriminating material

against him. Upon recovery of the substance from the

accused no.1, the officials should have proceeded to deal

with the substance in consonance with the provisions of the

NDPS Act instead of handing it over back to the accused no.

1. Such a procedure, according to me, cannot be

countenanced. The recovery and the seizure, in my prima

facie opinion, from the applicant is, therefore, illegal. Hence

I record my satisfaction that there are reasonable grounds

for believing that the applicant is not guilty of the alleged

offence. There is one criminal antecedent reported against

the applicant under the Maharashtra Prevention of Gambling

Act, 1887. There are no criminal antecedents reported

against the applicant under the NDPS Act. There is nothing

to infer that the applicant is likely to commit any offence

while on bail.

11. The circumstance that the applicant is in custody for

more than 4 years and 2 months, is an additional factor

weighing in favour of the applicant for enlarging him on

bail. The trial is not likely to conclude any time soon.

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Therefore, the applicant is released on bail. Hence, the

following order :-

ORDER

         (a)      Application is allowed.

         (b)      Applicant-Krunal Dinesh Sagar shall be released

on bail in connection with C.R. No.NCU/BZU/CR-21 of 2018 registered with Narcotics Control Bureau, Bombay Zonal Unit, Mumbai, on his furnishing P.R. Bond of Rs.1,00,000/- with one or more sureties in the like amount.

(c) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing the facts to Court or any Police Officer. The applicant shall not tamper with evidence.

(d) The applicant shall report to the NCB office once in a month on every Saturday of the first week between 11.00 a.m. and 1.00 p.m.

(e) On being released on bail, the applicant shall furnish his contact number and residential address to the Investigating Officer and shall keep him updated, in case there is any change.

12. The Bail Application is disposed of.

13. At this stage, learned counsel for the NCB requested 11/12 ::: Uploaded on - 14/02/2023 ::: Downloaded on - 03/06/2023 09:53:39 ::: PMB 18.ba.475-22.doc for staying the operation of this order. Considering the nature of the issue involved, I am inclined to accede to the request of learned counsel for the NCB. This order shall not take effect for a period of four weeks from the date of uploading.

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