Mumbai, Maharashtra – On December 7, 2018, the Special Court for Greater Bombay, operating under the N.D.P.S. Act, granted bail to Sultan Allabaksh Shaikh, 42, in Bail Application No. 704 of 2018. Shaikh, who was designated as Accused No. 2, faced charges under Section 8(c) punishable under Section 21(c) of the NDPS Act in Crime No. 138/2018 of Pydhonie Police Station. This was Shaikh’s second bail application, with a previous one (BA No. 582/2018) rejected on November 11, 2018, prior to the filing of the chargesheet.

The Prosecution’s Case

The prosecution’s narrative detailed an incident on July 4, 2018, around 8:00 AM, when Head Constable Rane and other police staff were patrolling near a foot-over bridge at Masjid Bunder Railway Station. They observed a boy, later identified as a child in conflict with law, carrying a suspicious bag. Upon being called, the boy fled, dropping the bag during the chase. The bag was recovered and found to contain 703.2 grams of heroin, a commercial quantity.

Further investigation revealed that the boy’s father, Sultan Allabaksh Shaikh (the applicant), allegedly used him to collect and transport the heroin. Shaikh was traced and apprehended in Chennai on August 16, 2018, and subsequently taken into judicial custody.

Arguments for Bail

Mr. V.P. Shinde, the learned advocate for Shaikh, argued that the prosecution’s case primarily rested on the statement of the child in conflict with law, which he contended was not admissible as evidence against the applicant, especially since it was made to the police. He also highlighted that mere telephonic calls between a father and son should not be construed as incriminating, particularly as the content of these calls was not recorded. Furthermore, Mr. Shinde emphasized that Shaikh had no previous criminal antecedents and argued that despite the case involving a commercial quantity, there was insufficient material against the applicant to deny bail.

Mr. Shinde presented several precedents from the Supreme Court and Bombay High Court to support his argument regarding the inadmissibility of co-accused statements or information from co-accused without corroborating evidence:

• Amarsingh Ramjibhai Barot V/s. State of Gujarat (2005): Argued that Section 29 (conspiracy and abetment) of the NDPS Act was not attracted in cases of individual carrying, though the court noted the facts were distinct.
• Maliram Matadin Soharsar V/s. The State of Maharashtra (1992): Distinguished by the court as the present case involved a minor child being used.
• Noor Mohammed Shaikh V/s. The NCB and Anr. (2012): Distinguished by the court as it related to a factory occupation and no recovery from the accused.
• Salim Babu Shaikh @ Aitun V/s. The State of Maharashtra (2013) & Shaikh Mohd. Hussain Usman Gani V/s. The State of Maharashtra (2015): Both cases involved accused being booked or discharged solely on the basis of co-accused statements without other material.
• Laxmi Koli Babita V/s. State of Maharashtra (2005): Held that a co-accused’s confession alone cannot lead to framing charges without other evidence.
• Suresh Budharmal Kalani @ Pappu Kalani V/s. State of Maharashtra (1998): Supreme Court ruling on limiting consideration to legally admissible evidence at the charge-framing stage.
• Iran Khan s/o Kasam Khan Pathan V/s. The State of Maharashtra (2007): High Court ruling on insufficient material from phone calls without conversation details.

Prosecution’s Opposition

Mr. P.S. Tawade, the learned Additional Public Prosecutor, opposed the bail, pointing out that Shaikh had absconded to Chennai after the incident, implying guilt. He stressed that although no recovery was made directly from Shaikh, the heroin was recovered from his son, a fact that could not be ignored.

Court’s Deliberation and Decision

Special Judge S.V. Yarlagadda considered the arguments carefully. The court acknowledged that the boy’s statement was recorded by the police and that he told the child welfare officer that his father (Shaikh) instructed him to collect and transport the parcel. The prosecution also presented Call Data Records (CDR) to suggest Shaikh’s abscondence to Chennai after the incident.

However, the court found that the issue of whether Shaikh absconded to evade arrest could not be decided on merits at the bail stage. Crucially, the court emphasized that since the heroin was not seized directly from Shaikh’s custody, and “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.”

Referencing the cited cases, particularly those where convictions were challenging solely based on co-accused statements without independent corroborating evidence, the court concluded that the applicant was entitled to bail.

Bail Order

The court ordered Sultan Allabaksh Shaikh to be released on furnishing a Personal Recognizance (PR) Bond of Rs. 25,000/- with one or two solvent sureties of a like amount.

The bail was granted with the following conditions:

• He shall not commit any offense while being on bail.
• He shall not directly or indirectly influence the prosecution’s witnesses.

The application was allowed and disposed of accordingly.