Mumbai: The Special Judge for NDPS Cases, Shri V.V. Vidwans (CR No.42), has rejected the regular bail application of Saher Javed Ali Sayed, who is accused of involvement in a criminal conspiracy related to the transportation of a commercial quantity of ‘Charas’. The order was pronounced on December 5, 2018.
Saher Javed Ali Sayed, residing in Kurla (W), Mumbai, was designated as accused no. 3 in NDPS R.A. No. 1076 of 2018 (NCB C.R. No.18/2018), registered by the Narcotic Control Bureau (NCB).
Prosecution’s Case
According to the NCB, on October 18, 2018, they received specific information about the transportation and delivery of a substantial quantity of ‘Charas’ near Kurla Bus Depot. A trap was laid, and accused nos. 1, 2, and 3 (Saher Javed Ali Sayed) were apprehended. From accused no. 1, the NCB recovered 1.8 kgs of ‘Charas’ packed in a ruck sack bag. Samples tested positive for ‘Charas’.
The NCB further alleged that Saher Javed Ali Sayed (accused no. 3), being the daughter of accused no. 2, was reportedly accompanying her. Statements recorded under Section 67 of the NDPS Act implicated accused no. 3 in a criminal conspiracy. The prosecution claimed that accused no. 1 was supposed to deliver the contraband to accused no. 3, who intended to transport it to Doha. Accused no. 2 (her mother) was allegedly assisting this trip.
Crucially, the NCB submitted that flight tickets for October 18, 2018 (Mumbai to Doha) and return tickets for November 8, 2018 (Doha to Mumbai), along with room booking in ‘The Town Hotel Doha’ for the duration, and other travel documents were recovered from the accused. This, according to the NCB, clearly indicated Saher Javed Ali Sayed’s intention to travel to Doha and her involvement in the criminal conspiracy. Since 1.8 kgs of ‘Charas’ is a commercial quantity, the stringent provisions of Section 37 of the NDPS Act were argued to be applicable.
Applicant’s Arguments for Bail
Learned Advocate Mr. Taraq Sayed, representing Saher Javed Ali Sayed, argued that his client had been falsely implicated, with no recovery made from her direct possession. He contended that the mandatory provisions of Sections 42 (information to be in writing and forwarded to superior) and 50 (right to be searched before Magistrate/Gazetted Officer) of the NDPS Act were not complied with. He claimed there was no clarity or transparency regarding Section 42 compliance and that accused no. 3 was not properly made aware of her Section 50 rights, despite the prosecution’s claim of a refusal.
Mr. Sayed asserted that the Section 67 statement of accused no. 3 was exculpatory, arguing she had no knowledge of the contraband or involvement in any criminal conspiracy. He maintained that she was merely present at the spot to meet accused no. 1 and had no connection to the drug dealings. Therefore, he argued, Section 37 of the NDPS Act should not apply. He also pointed out alleged irregularities and errors in the panchanama. He pleaded for bail on the grounds that accused no. 3 is a law-abiding woman supporting her family, has been in custody since October 18, 2018, and is a permanent resident unlikely to abscond.
Prosecution’s Opposition
Learned SPP Mrs. Vibhavari Pathak, for the NCB, strongly opposed the bail application. She contended that there was a prima facie case against accused no. 3, noting that all three accused were apprehended at the spot of recovery. She argued that the Section 67 statement provided insight into the criminal conspiracy regarding the transportation of the seized ‘Charas’.
Regarding the alleged non-compliance with Sections 42 and 50, she clarified that the information was received by the Investigating Officer (IO) on October 17, 2018, reduced to writing, and forwarded to both the Superintendent and Assistant Director of NCB. She affirmed that accused no. 3 was informed of her Section 50 rights by IO Anoop Kumar Gupta but declined the offer, opting to be searched by a lady officer.
The SPP particularly highlighted the recovery of international flight tickets and hotel bookings to Doha from the accused, which, in her view, clearly established Saher Javed Ali Sayed’s intention to travel to Doha and her direct involvement in the criminal conspiracy alongside accused nos. 1 and 2. Given that 1.8 kgs of ‘Charas’ is a commercial quantity, she reiterated that the strict provisions of Section 37 of the NDPS Act apply, hindering the grant of bail. She also argued that releasing accused no. 3 would impede the ongoing investigation.
Court’s Rationale and Decision
Special Judge V.V. Vidwans considered both sides’ arguments and the submitted documents, including the panchanama and the Section 67 statement. The court acknowledged that while nothing was seized directly from accused no. 3’s possession, the prosecution’s allegations centered on a criminal conspiracy.
The judge also reviewed the authorities cited by the SPP regarding Section 37 of the NDPS Act and compliance with Sections 42 and 50. The court noted that rulings like Uday Kumar Abhevardhan and Karnail Singh clarify that non-compliance with Section 42 may not vitiate a trial if no prejudice is caused to the accused. More importantly, authorities like Union of India v. Shiv Shankar Kesari and Union of India v. Rattan Mallik reinforce the stringent nature of Section 37, requiring the court to be satisfied of reasonable grounds to believe the accused is not guilty before granting bail in cases involving commercial quantities.
While acknowledging the defense’s argument regarding the exculpatory nature of the Section 67 statement and alleged defects in the panchanama, the court stated that these issues could be fully considered after the complaint (charge-sheet) is filed.
Ultimately, the court found:
- Accused no. 1 was found in possession of a commercial quantity (1.8 kgs) of ‘Charas’.
- There are allegations of criminal conspiracy among accused nos. 1, 2, and 3.
- The travel documents (flight tickets, hotel booking to Doha) recovered from the accused corroborate the prosecution’s claim of an intention to transport the contraband internationally.
Considering these factors, particularly the commercial quantity involved and the strong allegations of criminal conspiracy supported by travel documents, the court opined that “it will not be just and proper to grant bail to the accused no.3/applicant at this stage” as the investigation is at a preliminary stage.
Order
Bail Application No. 809 of 2018 was rejected and disposed of accordingly.