Mumbai, Maharashtra – In a significant development for a father accused of exploiting his minor son in a drug trafficking operation, the Special Court for Greater Bombay, operating under the N.D.P.S. Act, on December 7, 2018, granted bail to Sultan Allabaksh Shaikh (42). Shaikh, identified as Accused No. 2 in NDPS Special Case No. 200 of 2018, was facing serious charges under Section 8(c) punishable under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act. This decision comes after his initial bail application was rejected a month prior, on November 11, 2018.

The case, stemming from Crime No. 138/2018 of Pydhonie Police Station, revolves around the seizure of a substantial quantity of heroin and the alleged involvement of Shaikh’s minor son.

The Prosecution’s Allegations:

According to the prosecution’s account, on July 4, 2018, at approximately 8:00 AM, Head Constable Rane, along with other police personnel on patrol duty near a foot-over bridge at Masjid Bunder Railway Station, observed a boy acting suspiciously with a bag. Upon being approached, the boy attempted to flee, eventually dropping the bag. The bag was retrieved and found to contain 703.2 grams of heroin, a quantity classified as “commercial,” which typically triggers stricter bail provisions under the NDPS Act.

Subsequent investigation led to the identification and apprehension of the boy on July 18, 2018, who was then presented before the Juvenile Justice Board. It was through this investigation that the police alleged Sultan Allabaksh Shaikh, the boy’s father, had utilized his minor son to collect and transport the contraband. Shaikh was later traced to Chennai and arrested on August 16, 2018, after which he was remanded to judicial custody.

Defense Challenges Evidence Admissibility:

During the bail hearing, Mr. V.P. Shinde, the learned advocate representing Sultan Allabaksh Shaikh, vehemently argued for his client’s release, primarily challenging the admissibility and sufficiency of the evidence presented by the prosecution. Mr. Shinde contended that the entire case against Shaikh rested solely on the statement made by the child in conflict with law. He emphasized that such a statement, given to the police, would be inadmissible as evidence in court.

Furthermore, Mr. Shinde pointed out that while the prosecution alluded to telephonic communication between the father and son, there was no record of the actual conversations, asserting that mere call records between a father and his child, especially in such circumstances, could not inherently be construed as incriminating. He also highlighted that Shaikh had no prior criminal antecedents, a factor often considered by courts in bail matters. Despite the commercial quantity of heroin seized, Mr. Shinde maintained that there was insufficient material directly linking Shaikh to the offense to justify his continued incarceration.

To bolster his arguments, Mr. Shinde cited several significant judicial precedents:

• Amarsingh Ramjibhai Barot V/s. State of Gujarat (2005 SC): While the defense alluded to this case concerning Section 29 (conspiracy and abetment), the court noted that the facts were distinct, as it dealt with individuals separately carrying contraband.
• Maliram Matadin Soharsar V/s. The State of Maharashtra (1992): The defense referenced this case where a co-accused’s statement implicated the applicant; however, the court differentiated it, highlighting the present case’s unique aspect of a minor child being used.
• Noor Mohammed Shaikh V/s. The NCB and Anr. (2012): This case involved bail being granted where no recovery was made directly from the accused, a point of contention relevant to Shaikh’s situation.
• Salim Babu Shaikh @ Aitun V/s. The State of Maharashtra (2013) and Shaikh Mohd. Hussain Usman Gani V/s. The State of Maharashtra (2015): These cases supported the argument that charges or convictions based solely on co-accused statements, without corroborating material, are often unsustainable.
• Laxmi Koli Babita V/s. State of Maharashtra (2005): This ruling unequivocally stated that a co-accused’s confession alone cannot be used to frame charges against an accused in the absence of other evidence.
• Suresh Budharmal Kalani @ Pappu Kalani V/s. State of Maharashtra (1998 SC): The Supreme Court in this case emphasized that at the stage of framing charges, courts must confine their attention to materials legally translatable into evidence.
• Iran Khan s/o Kasam Khan Pathan V/s. The State of Maharashtra (2007): A High Court ruling where lack of material beyond co-accused statements and unrecorded phone call conversations led to discharge.

Prosecution’s Opposition:

Mr. P.S. Tawade, the learned Additional Public Prosecutor for the State, countered the bail plea by stressing that Sultan Allabaksh Shaikh had absconded to Chennai after the incident, a behavior he presented as indicative of guilt. He argued that despite no direct recovery from Shaikh, the heroin was seized from his son, a fact that could not be overlooked by the court.

Court’s Deliberation and Decision:

After meticulously hearing both sides and perusing the available records, Additional Sessions Judge S.V. Yarlagadda delivered the oral order. The court acknowledged the boy’s statement to the police and subsequently to the child welfare officer, where he implicated his father in instructing him to collect and hand over the parcel. The court also noted the prosecution’s presentation of call data records suggesting Shaikh’s presence and subsequent travel to Chennai.

However, the pivotal point in the court’s reasoning was the lack of direct recovery of contraband from Sultan Allabaksh Shaikh. The judge opined that at the bail stage, whether Shaikh truly absconded to evade arrest could not be definitively decided on merits. Crucially, the court stated, “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.”

Taking into careful consideration the various High Court and Supreme Court precedents cited by the defense, which largely dealt with the evidentiary value of co-accused statements and the necessity of corroborating evidence, the court concluded that Shaikh was indeed entitled to bail.

Bail Conditions Imposed:

Consequently, the court ordered Sultan Allabaksh Shaikh to be released on furnishing a Personal Recognizance (PR) Bond of Rs. 25,000/- (Rupees Twenty Five Thousand only), with the requirement of one or two solvent sureties of a like amount. The bail was made conditional upon strict adherence to the following directives:

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

The bail application was allowed, and the case stands disposed of accordingly. This decision underscores the judiciary’s adherence to the principles of evidence and the cautious approach in cases where direct incriminating material against the accused is limited, even in the context of serious offenses under the NDPS Act.