IN THE SPECIAL COURT FOR GREATER BOMBAY, BOMBAY
UNDER THE N.D.P.S. ACT.
BAIL APPLICATION NO.704 OF 2018
IN
N.D.P.S. SPECIAL CASE NO.200 OF 2018
CNR NO.: MHCC020126752018
(In crime no.138/2018 of Pydhonie Police Station for offences under
section 8(c) punishable under section 21(c) of the NDPS Act.)
Sultan Allabaksh Shaikh
Aged: 42 years, Occ.: Labourer,
R/o.: Zopda No 38, House No.87,
Breach Street, Near Annabhavn Building,
Dana Bunder, Mumbai.
V/s.
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The State of Maharashtra through the
SHO, Pydhonie Police Station, Mumbai.
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APPLICANT
(ACCUSED NO.2)
RESPONDENT
(PROSECUTION)
APPEARANCE:
Mr. V.P. Shinde, 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 :
7th December, 2018.
ORDER
(Dictated and pronounced in open Court)
This is second bail application by the applicant. His earlier
application vide BA no.582/2018 filed prior to receipt of the
chargesheet was rejected on 11.11.2018.
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Briefly stated, the facts of the prosecution’s case are that:
2.
On 04.07.2018 at about 8.00 a.m., head constable Rane
with another police staff was on patrol duty near a footover bridge at
Masjid Bunder Railway Station. They noticed a boy (child in conflict
with law) carrying a bag in his hand in suspicious manner. When he
was called, he started running away. After being chased, he dropped
the bag and escaped. Head constable Rane brought that bag to outpost
of bridge no.3. The bag contained some suspected substance wrapped
in a newspaper. After the superiors were informed, they arranged for its
testing. It turned out to be 703.2 grams of heroin. The name and
identification of that boy was ascertained.
Accordingly, FIR was
registered on the same day. He was apprehended on 18.07.2018 and
produced before the Juvenile Justice Board. The investigation revealed
that his father –the applicant used him to collect the heroin and while
he was carrying it, he was noticed and the heroin was seized. The
police traced out the applicant and brought him from Chennai. They
arrested him on 16.08.2018. He is in judicial custody. Hence, he is
seeking bail.
3.
I heard the arguments of learned advocate for the applicant
and the learned additional public prosecutor and perused the record.
The applicant’s learned advocate argued that except the statement of
the child in conflict with law, there is no other material against the
applicant. Such statement to the police is not admissible in evidence.
Since, he is father of the child in conflict with law, their telephone calls
cannot be taken as otherwise. The telephonic calls were not recorded.
The applicant has no previous antecedents.
Though it is a case of
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commercial quantity, there is no material against the applicant. Hence,
he urged for bail.
4.
The applicant’s learned advocate cited the case of
Amarsingh Ramjibhai Barot V/s. State of Gujarat, 2005 ALL MR (Cri)
229 (S.C.).
It is a case of two persons individually carrying the
recovered substance.
Therefore, it was held that section 29 i.e.
conspiracy and abetment, of the NDPS Act is not attracted. The facts
being distinct, this authority is not applicable.
5.
The applicant’s learned advocate referred to the case of
Maliram Matadin Soharsar V/s. The State of Maharashtra, Criminal
Application no.3531/1992, decided on 18.12.1992. In this authority, a
coaccused named the applicant/accused that he obtained the seized
drugs from the applicant. In the present case, as per the prosecution’s
case, the applicant used his minor child for drug trafficking.
6.
The
applicant’s
learned
advocate
referred
to
Noor
Mohammed Shaikh V/s. The NCB and Anr., criminal bail application
no.1951/2011, decided on 17.01.2012. In that case, the person who
was in occupation of the factory where Methamphetamine was allegedly
produced, was arrested. He was granted bail on the ground that no
recovery was made from him. The present case is distinct on facts and
hence, this authority is not applicable.
7.
In Salim Babu Shaikh @ Aitun V/s. The State of
Maharashtra,
criminal
application
no.1338/2012,
decided
on
21.01.2013, the case against the applicant was solely based on the basis
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of alleged information received by the police that he used to sell the
narcotic drugs through accused no.1. On the basis of the statement of
accused no.1, the applicant was booked and arrested.
8.
In Shaikh Mohd. Hussain Usman Gani V/s. The State of
Maharashtra, revision application no.541/2015, decided on 23.11.2015,
the applicant was discharged.
Because, except the statement of co
accused, there was no other material. He was chargesheeted on the
basis of the statement given by his wife that she received the contraband
from her husband –the applicant.
9.
In criminal revision no.497/2015, decided by our Hon’ble
High Court on 26.04.2016, the respondent was discharged under
section 227 of the Cr.P.C. He was booked on the basis of confession of
coaccused before the police officer.
10.
In Laxmi Koli Babita V/s. State of Maharashtra, 2005 (1)
Bom.C.R. (Cri.) 403, it was held that confession of coaccused cannot be
called in aid to frame charges against the accused in absence of any
other evidence.
11.
In Suresh Budharmal Kalani @ Pappu Kalani V/s. State of
Maharashtra, AIR 1998 (SC) 3258, the Hon’ble Supreme Court held that
at the stage of framing charge, the Court is required to confine its
attention to only those materials collected during the investigation
which can be legally translated into evidence and not upon further
evidence that the prosecution may adduce in the trial.
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12.
In Iran Khan s/o Kasam Khan Pathan V/s. The State of
Maharashtra, criminal revision application no.11/2007, decided on
28.03.2007 by our Hon’ble High Court, except the statement of co
accused, there was no material against the petitioner, in the
chargesheet. Thought there was material of phone calls, there was no
material regarding the conversation during those phone calls. Hence, it
was held that the petitioner was liable to be discharged.
13.
The learned additional public prosecutor argued that after
the incident, the applicant absconded and he was brought from
Chennai. Though there was no recovery from him, the recovery was
from his son and therefore, this fact cannot be ignored.
Thus, he
opposed the bail.
14.
The statement of the boy was recorded by the police during
the course of investigation.
As per the police papers, he gave the
statement before the child welfare officer that his father i.e. the
applicant told him that a person would give him a parcel near the bridge
and he should bring it and hand over it to him and accordingly, he
collected that bag and when he was chased by the police, he dropped it
and escaped.
15.
The prosecution produced on record some call data record.
According to the prosecution, after the incident, the applicant
absconded to Chennai. The applicant’s learned advocate argued that
the applicant did not abscond.
The call data record is produced.
Whether the applicant was present on 04.07.2018 and soon after
coming to know that his son was noticed or apprehended, then he went
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to Chennai to evade the arrest, cannot be decided on merits. If it is
proved, that would be a case of the applicant using his child for drug
trafficking. At this juncture, since the heroin was not seized from his
custody, merely on the basis of the statement of his son to the child
welfare officer and the call data records and in absence of any other
material, it cannot be believed that he was involved in the said offence.
Therefore, taking into consideration the above referred cases, I hold that
the applicant is entitled for bail. Accordingly, the following order is
passed.
FINAL ORDER
The applicant be released on furnishing a PR Bond of Rs.25,000/
with one or two solvent sureties of like amount.
He shall not commit any offence while being on bail. He shall not
directly or indirectly influence the prosecution’s witnesses.
The application is allowed and disposed off accordingly.
(S.V. YARLAGADDA)
Additional Sessions Judge,
Greater Bombay.
Date: 07/12/2018.
Order Dictated on :
Transcribed on
:
Signed on
:
07/12/2018
10/12/2018
10/12/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
10/12/2018 at 5.35 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
07/12/2018
Order signed by P.O. on
10/12/2018
Order uploaded on
10/12/2018