IN THE SPECIAL COURT FOR GREATER BOMBAY, BOMBAY
UNDER THE N.D.P.S. ACT.
BAIL APPLICATION NO.598 OF 2018
CNR NO.: MHCC020109262018
(In crime no.88/2018 of L.T. Marg Police Station for offence under
section 8(c) punishable under section 21 of the NDPS Act in R.A.
No.776/2018.)
Idris Daaud Hathiyari
Aged: 44 years, R/o.: Nimach,
Mandsaur, Hudco Colony, Vikas
Nagar, Above Rajubhai Dudhwala,
Near Patel Plaza, Madhya Pradesh.
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APPLICANT
(ACCUSED)
V/s.
The State of Maharashtra through the
SHO, L.T. Marg Police Station, Mumbai.
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RESPONDENT
(PROSECUTION)
APPEARANCE:
Mr. S.R. Patil, Advocate for the Applicant/Accused.
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 :
17th September, 2018.
ORDER
(Dictated and pronounced in open Court)
The applicant was arrested on 06.08.2018 on allegation of
possessing 560 grams of gard powder (heroin).
custody. Hence, he is seeking bail.
He is in judicial
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2.
The prosecution filed reply vide Exh.2 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.
3.
Here is no dispute that 500 grams of heroin falls in the
category of commercial quantity, for which section 37(1)(b) of the
NDPS (i.e. Narcotic Drugs and Psychotropic Substances) Act is attracted.
The investigation is yet to be completed. At present, the accusation
against the applicant is of an offence under section 8(c) punishable
under section 21 of the NDPS Act.
4.
The applicant’s learned advocate argued that the applicant
has been falsely implicated.
complied by the police.
custody.
Section 42 of the NDPS Act was not
The applicant has been taken into judicial
Hence, he is not required for further interrogation.
The
chargesheet and trial may take much time. The prolonged detention of
the applicant at a pretrial stage is contrary to law. The applicant has a
fixed place of residence in Madhya Pradesh. He is ready to abide by the
conditions which may be imposed by the Court. Thus, he argued for
granting bail.
5.
The learned additional public prosecutor reiterated the
grounds mentioned in the reply viz., the applicant is likely to abscond,
he has other cases registered against him, he may create obstacles in the
investigation and the person from whom the applicant procured the
contraband substance is yet to be traced out.
Unless the Court is
satisfied that there are reasonable grounds to believe that the applicant
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is not involved in the offence of commercial quantity and there is no
possibility of repetition of the offence, the applicant is not entitled for
bail.
6.
The applicant’s learned advocate argued that in the FIR, it
was not mentioned that the information i.e. tipoff, about the applicant
likely to come with contraband power, was reduced into writing.
Hence, according to him, the applicant is entitled for bail.
In this
regard, he relied on the decision of our Hon’ble High Court in the case
of Rajaram Kadu V/s. The State of Maharashtra, Cri. Bail Appln.
No.2108/2016, decided on 13.06.2017, in which it was observed that
the FIR did not indicate that the information was reduced into writing
or copy of that information was provided to the superior officer.
According to the applicant’s learned advocate, the officer who received
the information, should reduce it into writing in a separate information
register. Recording such information in a station diary or recording
such information by another officer would not be a sufficient
compliance of section 42 of the NDPS Act.
7.
In view of the above mentioned argument, I directed the
investigating officer to produce for my perusal the investigation papers.
Accordingly, he made available to me the investigation papers today. I
have gone through them. I have obtained one attested copy of the
information reduced into writing in the station diary. The contention of
the applicant’s learned advocate that such information should be
reduced into writing in a separate register than the station diary, cannot
be accepted.
Because, there is no such mandatory provision.
Maintaining separate register may be applicable to other investigating
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agencies than the police. In the present case, the investigating agency is
the police. They maintained the station diary in regular course of their
official business.
8.
In the above mentioned authority of Rajaram Kadu, it was
observed that the information was reduced into writing, but not by the
person who received it and that there was no material indicating that
the information was forwarded to the superior officer. The station diary
entry extract produced today shows that police inspector Sanjay Mohite
gave the information for the entry that police constable Gujar’s special
informer came to the police station and gave information that the
applicant was to come to Mumbai from Madhya Pradesh to sell gard
powder through his agent. It further shows that the applicant was to
come between 7.30 to 8.00 p.m. to the footpath between the S.K. Patil
Udyan to Hirvi Masjid, M.K. Road, Mumbai.
His description is also
given. It further shows that its copy was submitted to the ACP and DCP.
The applicant’s learned advocate argued that the information was
received by police constable Gujar and therefore, he ought to have taken
the entry. He argued that in the FIR, there is no mention of reducing
into writing such information.
However, in view of the above
mentioned fact that such information was not reduced into writing in
the station diary, it cannot be said that the information was reduced
into writing at all. There is indirect reference to the station diary in the
FIR also. The FIR’s contents show that PSI Patil took copies of the
station diary and gave the same to police constable Mahajan for
submitting to the superiors at about 5.00 p.m.
Therefore, the
contention of the applicant’s learned advocate that the information was
not reduced into writing, cannot be accepted.
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9.
As per the station diary entry, the information was given by
the special informer of police constable Gujar at the police station and
Police Inspector Mohite mentioned it. The FIR’s contents show that
around the same time of 4.30 p.m., Police Inspector Mohite called other
police team and gave details of the information received by police
constable Gujar.
10.
As per section 37(1)(b) of the NDPS Act, a person to whom
the said section is applicable, shall not be released on bail unless the
Court is satisfied that there are reasonable grounds for believing that he
is not guilty of such offence and that he is not likely to commit any
offence while on bail. Its subsection (2) says that such limitations on
granting bail are in addition to the limitations under the Cr.P.C. (i.e.
Code of Criminal Procedure).
Therefore, the requirement for the
applicant is to show that there are no reasonable grounds to believe that
he is involved in the said offence. In the case of Karnal Singh V/s. State
of Haryana, 2009 Cri. L.J. 4299, the Hon’ble Supreme Court observed
that where the police officer does not record the information at all, it
would be a clear violation of section 42 of the NDPS Act. It was also
observed that whether this was adequate or substantial compliance of
section 42 or not, is a question of fact to be decided in each case. In the
case of Basheer @ M.B. Basheer V/s. State of Kerala, 2004 (5) SCC 659,
it was held that a bail cannot be granted on mere grounds that there
was no strict compliance of mandatory provision of section 42 of the
NDPS Act. Therefore, as per the law laid down in this authority, non
compliance of section 42 of the NDPS Act is not a sole ground for bail in
view of the requirement of section 37(1)(b) of the NDPS Act. This is
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not a case of total noncompliance of section 42 of the NDPS Act. The
information was reduced into writing by a superior officer i.e. Police
Inspector. It’s copy was forwarded to the superior officer. Therefore, at
the stage of bail, it cannot be disbelieved.
11.
The prosecution did not give details of any previous
offences registered against him. But, the other grounds urged by the
applicant are not enough to convince the Court that the applicant is not
involved in the offence pertaining to commercial quantity of heroin.
Therefore, bail cannot be granted to him. Hence, 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: 17/09/2018.
Order Dictated on :
Transcribed on
:
Signed on
:
17/09/2018
18/09/2018
18/09/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
18/09/2018 at 5.00 p.m.
UPLOAD DATE AND TIME
BHARAT KASHINATH GAIKWAD
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
17/09/2018
Order signed by P.O. on
18/09/2018
Order uploaded on
18/09/2018