NDPS BA 1046/2023
1
MHCC020180522023
IN THE COURT OF THE SPECIAL JUDGE FOR N.D.P.S. CASES
AT GREATER MUMBAI
N.D.P.S. BAIL APPLICATION NO. 1046 OF 2023
IN
FIR No.SIIB(I)/Gen – 05/2023-24/ACC
IN
RA NO.1489/2023
Mr. Narayan Singh Kharayat,
Age: 61 years, Occ.: Business,
R/o. 302/322, Laxmi Kunj, R.S.C.,
25, Gorai 2, Borivali West,
Mumbai – 400092.
V/s.

… Applicant
Union of India
(Through Special Investigation
and Intelligence Branch (SIIB),
Import, ACC, Mumbai Customs Zone III)
… Respondent
Appearance :Mr. Inderpal B. Singh, Adv. for the applicant/accused.
Mrs. Vibhavari Pathak, SPP for the respondent.
CORAM :
H.H. THE SPECIAL JUDGE
SHRI R. R. BHAGWAT (C.R.44)
DATE :
29.12.2023
ORDER
This is an application filed by applicant/accused – Narayan
Singh Kharayat for grant of bail under Section 439 of Code of Criminal
NDPS BA 1046/2023
2
Procedure, 1860, who was arrested on 25.11.2023 vide C.R.
No.SIIB(I)/Gen – 05/2023-24/ACC, registered with SIIB, Import, ACC,
Mumbai Customs Zone III for offence punishable under sections 8(c)
r/w 23(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985
(For short, “the NDPS Act”). Perused bail application and say filed by
the Investigating Officer through learned A.P.P.
2.

Heard learned Counsel Mr. Inderpal B. Singh for the applicant
and learned S.P.P. Mrs. Vibhavari Pathak for the respondent.
3.

It is the case of prosecution that on the regular course of
examination of one import consignment covered under Bill of Entry
No.8795836
dated
16.11.2023
by
importer
Ajay
Malik
(IEC-
HKGPM3853J) through Customs broker M/s. Lucky Clearing Agency
was examined under panchanama dated 17.11.2023/18.11.2023 by the
officers of Import Shed, ACC, Mumbai which resulted into recovery of
total weighing 7857 gms of flowering or fruiting tops of the cannabis
plant purported to be Ganja/Marijuana and the same was seized under
the provision of the NDPS Act. On 18.11.2023, statement of Mr.
Narayan Kharayat (the applicant), Partner of M/s. Lucky clearing agent,
Mr. Madhav H. Kharayat and Mr. Subhash Tambe were recorded under
section 67 of the NDPS Act. On 18.11.2023, search was undertaken at
the office of CB M/s. Lucky Clearing Agency and at the delivery address
provided by the importer. Then, summonses were issued on 18.11.2023
to Shri Chetan Mehta, F-card holder of M/s. Lucky Clearing Agency,
Narayan Kharayat and to Ms. Prajakta Jadav clerk/operator from
Freight Forwarder Bhagwat Group Corporation, Navi Mumbai under
section 67 of the NDPS Act. Delhi Customs were asked to search
addresses of the importers by issuing letter. On 01.12.2023, mail was
received from Delhi Customs by investigating agency stating that all
NDPS BA 1046/2023
3
addresses of three importers are not associated with the importers and
are occupied by other persons.
4.

On 25.11.2023, the applicant made statement that he filed
Bill of Entry No.879586 dated 16.11.2023 on behalf of M/s. Ajay Malik/
Malik Enterprises without authority letter from the importer and he
failed to do the KYC verification of the documents of the importer. The
applicant himself paid customs duty and other charges for the said Bill
from bank account of M/s. Lucky Clearing Agency and he knew about
non-existence of address provided by the person named Mr. Sourav
Raha. He uploaded wrong Textile Committee Report through staff for
the said bill. He failed to identify genuineness of the client. He knew
that address mentioned in the invoice and IEC were different. He told
his staff to deliver the goods at the address other than that mentioned
in the invoice. Hence, the applicant was placed under arrest on
25.11.2023 for offence punishable under sections 8(c) r/w 23(b) of the
NDPS Act.
5.

The applicant is seeking bail on the grounds that initially,
Mr. Sourav Raha, proprietor of Smart Moves Overseas booked
consignment of T-shirts to be cleared in the name of Smart Moves
Overseas and appointed the applicant for the customs clearing purpose.
On 07.10.2023, the importer had deposited amount of Rs.69,500/– in
the bank. After the receipt of the said amount, the applicant paid
customs duty from his account of Rs.49,841/– and other charges. Upon
instructions of the importer, delivery was handed over to their
representative at Kalbadevi and acknowledgment was received on the
delivery challan. By pointing out this transaction, the applicant has
attempted to show bona-fide way of his dealings with the clients. He
further contended that the Airway Bill was changed by M/s. Bhagwat
NDPS BA 1046/2023
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Group from Smart Moves to M/s. Malik Enterprises upon receiving
instructions from the importer. After narrating all these details, the
applicant contended that he has no criminal antecedents and he is not a
habitual offender. He has a clean record for more than 27 years in the
functioning of M/s. Lucky Clearing Agency. The applicant is an innocent
person and is not involved in any activity or offence alleged by the
competent
authority
and
he
has
been
falsely
implicated
on
circumstantial instances in the present case. It is a well-planned
conspiracy by the importer to defraud the government. The importer
indulged in fraudulently fabricating documents and on the basis
thereof, he managed to obtain bogus PAN card, IC Code from DGFT
and on that basis, he opened a bank account. Income tax department
has not verified genuineness of election voter card before issuing the
PAN card. DGFT also issued IEC code without raising an objection on
authenticity of documents. Case of the prosecution is based on the
vague and incoherent facts. There is no prima facie case made out
against the applicant. As the applicant is only a custom house agent, he
is neither the user nor the consignee nor the importer. He is merely a
facilitator who also happens to be a victim of the importer’s dubious
plan. The applicant is being made the scapegoat in the present matter.
The applicant also relied upon several citations in his bail application.
The applicant has no complicity in the commission of offence. The
applicant is a permanent resident of Mumbai. There is no flight risk.
The applicant is continuously cooperating with the investigating agency
with and/or without issuance of summonses as and when called upon.
He is ready to abide by conditions imposed by the court. The applicant
has not been convicted by any court of law. The applicant is not going to
flee from justice and his presence can be secured at the time of trial. He
prayed for bail.

NDPS BA 1046/2023
6.

5
Ld. Adv. Mr. Inderpal B. Singh for the applicant narrated
prosecution version as well as grounds of bail in the course of his
arguments. He further submitted that First consignment of T-shirts was
cleared. The importer had paid custom duty in the account of clearing
house agent. Textile report is genuine. Bhagwat Group is forwarding
agent. Smart Moves Overseas is the buyer. Airway Bill was changed by
Bhagwat Group. GST was cleared in the name of M/s. Malik
Enterprizes. It was sole decision of Sourav Raha and Bhagwat Group.
Airway Bill cannot be changed without consent of the exporter. The
applicant is service provider and he is not responsible for KYC
documents. No incriminating thing is seized from office of the applicant
and his residence. Sec.35 of the NDPS Act is not attracted. The
applicant had no knowledge of the second consignment. He placed on
record written notes of submissions and also referred citations. Seized
contraband is having intermediate quantity. But u/s.37 of the NDPS Act
is not attracted The applicant is ready and willing to abide by all
conditions imposed by this court. He prayed for bail to the applicant.
7.

On the contrary, Ld. S.P.P. Ms. Vibhavari Pathak for the
respondent submitted that Name on the Airway Bill is changed, but
other particulars are the same. The applicant is a partner in M/s. Lucky
Clearing Agent. The applicant had filed Airway Bills. He might be the
importer and therefore, he has not filed KYC. The applicant himself paid
custom duty. If the applicant is a clearing house agent, he should not
have paid custom duty. Wrong textile committee report is misused on
the second occasion. Genuineness of the client is not verified. Fake
details are submitted. The goods are delivered to other address than
that of mentioned in invoices. The applicant did not follow regulations
and had tampered with documents. He is in contact with known and
NDPS BA 1046/2023
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unknown persons. Bail to the applicant may hamper investigation.
Investigation is at preliminary stage. She prayed for rejection of the bail
application.
8.

Considering rival submissions and material on record, it
appears that the applicant is a partner in clearing house agent firm. The
applicant had paid custom duty after receiving money from the
importer in his bank account. Total 7857 grams of Ganja is seized. It
falls under intermediate quantity of contraband. Bar u/s.37 of the NDPS
Act is not attracted. The applicant is a businessman and local resident of
Mumbai. He does not have criminal antecedents to his discredit. In such
circumstances, presence of the applicant for investigation and trial can
be secured. He can be released on bail by imposing stringent conditions.
Hence, I pass following order :ORDER
1. Bail Application No. 1046/2023 is hereby allowed.
2. Applicant/accused Narayan Singh Kharayat in C. R. No.SIIB(I)/Gen –
05/2023-24/ACC of SIIB, Import, ACC, Mumbai Customs Zone III
registered under section 8(c) r/w 23(b) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 shall be released on his executing P.
R. Bond of Rs.50,000/- (Rs. Fifty Thousand only) with one or more
sureties in the like amount.
3. The applicant/accused to attend office of SIIB, Import, ACC, Mumbai
Customs Zone III on every Monday between 11.00 a.m. to 02.00 p.m.
till filing of charge-sheet.
4. The applicant/accused and his sureties shall provide their respective
mobile Nos. and correct addresses of their respective residences
along with names of two relatives with their mobile Nos. and addresses.
5. The applicant/accused shall produce the proof of his identity and
proof of residence at the time of executing the bail bond.
6.

The
applicant/accused
shall
not
tamper
with
prosecution
NDPS BA 1046/2023
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witnesses/evidence in any manner and co-operate in early disposal of
trial.
7. The applicant/accused shall not commit similar offence while on
bail.
8. On request of Ld. Advocate for the applicant/accused, the
applicant/accused shall be released on provisional cash bail of
Rs.50,000/- for the next four weeks from the date of this order.
9. Application is disposed off accordingly.

Date : 29.12.2023
Dictated on
Transcribed on
Signed on
(R. R. BHAGWAT)
Special Judge (N.D.P.S.),
City Civil & Sessions Court,
Gr. Bombay (C.R. NO.44)
: 29.12.2023
: 01.01.2024
: 01.01.2024
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE
02.01.2024
TIME
NAME OF STENOGRAPHER
12.10 p.m.

Mrs. S. W. Tuscano
Name of the Judge
HHJ Shri R. R. Bhagwat
(CR No.44)
Date of Pronouncement of
Judgment/Order.
Judgment/order signed by P.O on
29.12.2023
Judgment/order uploaded on
02.01.2024
01.01.2024