IN THE SPECIAL COURT FOR GREATER BOMBAY, BOMBAY
UNDER THE N.D.P.S. ACT.
BAIL APPLICATION NO.582 OF 2018
CNR NO.: MHCC020106962018
(In crime no.138/2018 of Pydhonie Police Station for offence under
section 8(c) punishable under sections 21 and 29 of the NDPS Act in
R.A. No.804/2018.)
Sultan Allabaksha Shaikh
Aged: 42 years, Occ.: Labour,
R/o.: Room No.38, House No.87,
Bharuch Street, Near Annabhavan Building,
Dana Bandar, Mumbai – 400 009.
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APPLICANT
(ACCUSED)
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RESPONDENT
(PROSECUTION)
V/s.
The State of Maharashtra through the
SHO, Pydhonie Police Station, Mumbai.
APPEARANCE:
Mr. V.P. Shinde, Advocate for the Applicant.
Mr. P.S. Tawade, APP for the Respondent/State.
APPLICATION FOR BAIL UNDER SECTION 439 OF THE CODE OF
CRIMINAL PROCEDURE
CORAM :
SHRI S.V. YARLAGADDA
ADDITIONAL SESSIONS JUDGE
(Court Room No.54)
DATE :
11th November, 2018.
ORDER
(Dictated and pronounced in open Court)
Briefly stated, the case of the prosecution is that on
16.08.2018 at about 8.00 a.m., while the police were on patrol duty,
they noticed the applicant’s son (a child in conflict with law) carrying a
bag in suspicion circumstances in a crowded place. When the police
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called him, he dropped the bag and made a good escape. The police
checked that bag. It contained heroin of 703.2 grams. Later on, he was
traced out and brought from Thirunamalai, Tamil Nadu, the place of his
relatives.
He was produced before the Juvenile Justice Board.
It
granted him bail. But during his interrogation by police, he told that his
father i.e. the present applicant asked him to bring that heroin. The
applicant was arrested on 24.08.2018. Therefore, he is seeking bail.
2.
Police invoked section 8(c) punishable under section 21(c)
of the NDPS (i.e. Narcotic Drugs and Psychotropic Substances) Act. But
the investigation is yet to be completed. Therefore, the chargesheet is
yet to be filed.
3.
The prosecution filed reply and opposed the bail. I heard
the arguments of the applicant’s learned advocate and the learned
additional public prosecutor. I have gone through the case papers.
4.
The bail is opposed on the ground that the applicant used
his minor son to commit the offence under the NDPS Act. Inspite of
interrogation, he did not give full details of the persons from whom the
said heroin was procured through his son. He did not cooperate in the
investigation. His call details are being collected. On that basis, further
investigation is to be done.
5.
Here is no dispute that the heroin was not sized from the
applicant’s possession but from his son. The quantum of the seized
heroin is commercial quantity. Therefore, section 37(1)(b) of the NDPS
Act is attracted.
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6.
The applicant’s learned advocate argued that as the
contraband was not seized from the possession of the applicant, he is
entitled for the bail. In this regard, he cited the authorities of Maliram
Matadin Saharsar V/s. The State of Maharashtra, Criminal Application
no.3531/1992, decided on 18.12.1992, Ramesh Singh @ Chauhan V/s.
The State of Maharashtra, Criminal Revision Application no.185/2004,
decided on 23.03.2005, Amarsingh Ramjibhai Barot V/s. State of
Gujarat, 2005 ALL MR (Cri) 229 (S.C.), Noor Mohammed Shaikh V/s.
The NCB and Anr., Criminal Bail Application no.1951/2011, decided on
17.01.2012, Mr. Shashiram Ambaram Choudhary V/s. State of
Maharashtra,
Criminal
Application
no.2410/2008,
decided
on
28.07.2008, Sangeeta Y. Gaikwad V/s. State of Maharashtra, 2006 ALL
MR (Cri) 2405, Mr. Dawood @ Arije @ Kashim V/s. State of
Maharashtra,
Criminal
Application
no.2348/2008,
decided
on
30.07.2008 and submitted that in these cases also the bail was granted
in similar circumstances.
7.
Ramesh Singh @ Chauhan (cited supra) is a revision
against rejection of the application for discharge of the accused. The
grounds in this application were that the statement of coaccused was
hit by section 26 of the Indian Evidence Act and hence, it cannot be
considered even under section 30 of the Indian Evidence Act.
The
accused in the said case are not blood relatives like the present case.
However, in the case of Mr. Dawood (cited Supra), the accused were
wife and husband. The contraband charas was found in possession of
the wife. It was observed that there was no legally admissible material
against the husband and therefore, he was liable to be granted bail. As
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observed by the Constitution Bench of the Hon’ble Supreme Court in
State of Punjab V/s. Baldev Singh, (1999) 6 SCC 172 (Constitution
Bench), a decision has to be considered in the context in which it was
rendered and everything said in a decision does not constitute a
precedent.
Therefore, all these authorities cited by the applicant’s
learned advocate have to be followed, but only after taking into
consideration the facts of the present case.
8.
In the present case also, the statement given by the child in
conflict with law was to a police officer. But, there are other facts which
are to be taken into consideration apart from the said statement of the
child in conflict with law, showing the involvement of the present
applicant.
As per the say of the police, after escaping from being
apprehended by the police, the child in conflict with law contacted
Sabira, who is the sister of the applicant’s wife. The applicant was also
in contact with Sabira, the child in conflict with law and three others.
The police is investigating further. This is a very distinct case where the
father i.e. the applicant used his child for drug trafficking, which attract
section 12 also of the Juvenile Justice Act, 2015. These peculiar facts
distinguish the citations referred to by the applicant’s learned advocate.
9.
In view of the statement of the child in conflict with law
and the call details of his phone number and others phone numbers,
including of the applicant, there is prima facie material showing the
involvement of the applicant in the said offence as an abettor and
conspirator of offence under section 8(c) punishable under section
21(c) read with section 29 of the NDPS Act. In order to grant bail in
view of section 37(1)(b) of the NDPS Act, the Courts shall record its
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satisfaction that there are no reasonable grounds to believe that he was
involved in such offence i.e. involving commercial quantity. But, the
applicant came with one main ground that the contraband was not
recovered from his possession. The other grounds are of general nature.
The ground that the child in conflict with law has been released on bail
by the Juvenile Justice Board is of no avail to the applicant. Because,
there are different considerations under section 78 of the Juvenile
Justice Act, 2015 for grant of bail to a child in conflict with law.
Moreover, the applicant himself used that child as a tool to commit the
offence. Hence, I do not find any reason to believe that the applicant is
not involved in the said offence. Hence, the application is liable to be
rejected. Accordingly, the following order is passed.
FINAL ORDER
The application for bail is rejected and disposed off accordingly.
(S.V. YARLAGADDA)
Additional Sessions Judge,
Greater Bombay.
Date: 11/09/2018.
Order Dictated on :
Transcribed on
:
Signed on
:
11/09/2018
12/09/2018
12/09/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
12/09/2018 at 5.05 p.m.
BHARAT KASHINATH GAIKWAD
UPLOAD DATE AND TIME
NAME OF STENOGRAPHER
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Name of the Judge
HHJ SHRI S.V. YARLAGADDA
(Court Room No.54)
Date of pronouncement of Order
11/09/2018
Order signed by P.O. on
12/09/2018
Order uploaded on
12/09/2018