Gita Gopi, J
1. This application has been filed under section 439 of the Code of Criminal Procedure for regular bail in connection with the FIR bearing CR No.III-
01/2021 registered with ATS for offences punishable under Sections 8(c), 22(c) and 29 of the NDPS Act.
2. Mr. Timbalia, learned advocate for Ms. Hemali Pandya, learned advocate for the applicant submits that the accused no.1â€" Mohammad Sultan
Shaikh was detained by the Police Inspector, ATS, Ahmedabad on 19.1.2021 from whose possession, contraband article Methamphetamine of 991
gms. was found and according to the secret information, he was to travel from Mumbai to Ahmedabad, near Mataji’s temple at Sarthi Apartment.
On detaining and after inquiry, he had informed the ATS police that Khadim of Ajmer Dargah Wasim whose mobile number is 9167705742 had sent
Methamphetamine through his man at about 9.30 p.m. to deliver the same to the accusedâ€"Mohammad Sultan, near Shalimar Hotel, Mumbai. As per
the information given to the police, the said person had given Methamphetamine bag and Rs.2,000/- to the accusedâ€"Mohammad Sultan and as per
the instructions given by Wasim, he was to deliver the contraband to a person in red t-shirt at Shahibaug area, near temple opposite to Musa Suhag
cemetery and on delivery, the recipient was to give him Rs.10,000/-. Mr. Timbalia submits that the accused no.1 had named Wasim of Ajmer Dargah
and had also given a specific mobile number, but to shield and protect the main person, ATS had arrested the present applicant without any evidence
to relate him with the contraband article. Mr. Timbalia submits that on inquiry, mobile number was found of one Samir Shaikh who is taxi driver of
Mumbai and according to him, he occasionally used to drive the car of the present applicant. According to Mr. Timbalia, a false story has been
created through Samir Shaikh of the said mobile number of Khadim Wasim as it belongs to him. There is nothing on record to suggest that the said
mobile number is in the name of Samir Shaikh. Mr. Timbalia submits that the statement of Samir Shaikh dated 23.1.2021 itself creates doubt when he
suggested that he had inquired from the parents of Sultan Shaikh on 19.1.2021 and though the parents had informed him of his arrest by the ATS, his
statement is recorded as if he had called at 1.30 at night to ATS, Ahmedabad to inquire about Sultan. Mr. Timbalia submits that the person named
Farhan who had informed Samir Shaikh about asking him to inquire about Sultan from his house is nowhere on record. No statement of Farhan
Gulzarkhan is recorded and as per the record, Farhan Gulzarkhan is nowhere found. Mr. Timbalia submits that arrest is made of the present applicant
since he was arrested in offence registered at Bandra Narcotics Cell and was released on bail. As per the statement Farhan Gulzarkhan, he was also
arrested in connection with the offence registered at Meghvadi Police Station under some offence of cheating and was on bail. Inspite of this fact, Mr.
Timbalia submits that no statement of Farhan Gulzarkhan is recorded.
3. Mr. Pranav Trivedi, learned APP submits that there are about 12 telephonic conversations between both the accused from 13.11.2020 to 9.1.2021
and 96 phone calls from 1.6.2020 to 19.1.2021 and about 658 phone calls between 6.9.2020 and 19.1.2021. Learned APP submits that CDR details
itself suggest the relation of both the accused earlier and even during the time he was arrested. The police has also taken details from Manish Travels
about the reservation of the tickets by the accusedâ€"Mohammad Sultan regarding his travel from Mumbai to Ahmedabad and thus, submits that
accused no.1 had given wrong details about Wasim of Ajmer Dargah while actually, the contraband was delivered by the present applicant.
4. As per the record, as soon as accused no.1 was arrested, he had named Ajmer Dargah’s Khadim one Wasim with a mobile number
9167705742 and the statement of Samir Shaikh is recorded to the effect that the said mobile number belongs to him, but no CDR details have been
placed on record to falsify the statement of accused no.1 who had named Wasim with mobile number. The records of the Company from where the
present applicant had got issued the mobile numbers, those details have been collected by the ATS while no details as to sim card of the Company of
mobile no. 9167705742 could be shown from the charge-sheet papers nor from the police papers. The statement of Farhan is not recorded though it is
shown through the statement of Samir Shaikh that he had been arrested in some offence at Meghvadi Police Station. Even no inquiry has been made
as to the person to whom the delivery of the contraband was to be made. The information which was given by the accused no.1 is of some red t-shirt
person who would have come near Musa Suhag burial for receiving the delivery and more so, no further inquiry has been made regarding the delivery
received of the contraband by the present applicant from any other person at Mumbai. While as per the accused, Methamphetamine was delivered to
him at 9.30 p.m. on earlier day, near Shalimar Hotel at the instance of Wasim of Ajmer Dargah. While according to the police, the person was to
receive the contraband at Ahmedabad near Mataji’s temple is also named Wasim. All these facts create loopholes and the circumstantial
evidence prima facie do not get connected. The police has failed to inquire about Wasim of Ajmer Dargah. The statement of Farhan is not on record.
However, no CDRs of mobile no. 9167705742 is produced before this Court for perusal nor any details of any money dealings by way of Bank
transactions with the co-accused and with any other witnesses have been brought on record. Considering all these facts, discretion is exercised in
favour of the applicant.
5. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with FIR bearing CR No.III-01/2021
registered with ATS on executing a personal bond of Rs.15,000/- (Rupees Fifteen Thousand only) with one surety of the like amount to the
satisfaction of the trial Court and subject to the conditions that the applicant shall:
[a] not take undue advantage of liberty or misuse liberty;
[b] not act in a manner injurious to the interest of the prosecution;
[c] surrender passport, if any, to the lower court within a week;
[d] not leave India without prior permission of the concerned trial court;
[e] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change
the residence without prior permission of the concerned trial court;
6. The authorities shall adhere to its own Circular relating to COVID-19 and, thereafter, will release the applicant only if the applicant is not required
in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be
free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case.
7. Rule is made absolute to the aforesaid extent. Direct service is permitted. Registry to communicate this order to the concerned Court/authority by
Fax or Email forthwith.
