Â
Milind N. Jadhav, J.
1. Heard Mr. Ponda, learned Sr. Advocate for Applicant in BA 3846/2024; Mr. Setalvad, learned Sr. Advocate for ApplicantÂ
in BA 4731/2024; Mr. Munde, learned Special P.P. for Respondent; Mr. Dedhia & Ms. Bajoria, learned APP for State. This common judgement
will determine and dispose of both aforesaid Bail Applications.
2. Applicants - Accused Nos. 2 & 4 have filed the present Application for regular bail under Section 439 of the Code of Civil Procedure, 1973 (for
short, ""Cr.P.C."") in connection with F. No. SD/INT/INV/NCCP-01/2023-24 R & I for the offences punishable under Sections 8(c) r/w 21(a), 22(c),
23(a)(c), 27A, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ""NDPS""). Both Application are heard and decided
together due to commonality of facts and for brevity. They arise in the same crime.
3. The case of prosecution in a nutshell is that accused No.3 booked a parcel from Netherlands containing certain contraband in the name of accused
No.1. The parcel was intercepted by the officers of Respondent based on specific intelligence received by Preventive Officer of NCCP indicating
possibility of MDMA[A Narcotic Drug and Psychotropic Substance listed at Sr. No. 134 of the Table as per clause (viia) of Section 2 of the NDPS
Act having ‘small quantity’ as 0.5 gm and ‘commercial quantity’ as 10 gm] tablets being smuggled to India vide the parcel bearing
tracking No.RT56082NL at Foreign Post Office “FPOâ€, Mumbai. It contained two bags of contraband which tested positive for 45 grams of
MDMA and 0.64 grams of Cocaine[A Narcotic Drug and Psychotropic Substance listed at Sr. No. 27 of the Table as per clause (viia) of Section 2 of
the NDPS Act having ‘small quantity’ as 2 gm and ‘commercial quantity’ as 100 gm] respectively.
4. Upon attaining satisfaction with regards to presence of prohibited substances in the parcel, a team led by PO Naveen Kumar was directed to
conduct controlled delivery of the said contraband which failed twice between 21.11.2023 and 28.11.2023. On 29.11.2023, a phone call was made by
accused No.4 to the FPO asking the parcel to be handed over to his representative upon furnishing a copy of Aadhar card of the addressee / accused
No.1, this request was denied. Subsequent to the aforesaid, on 30.11.2023 accused No.1 himself reached the FPO to collect the parcel where he was
apprehended. When inquired about any other person accompanying him, he pointed towards accused No.2 who was walking on the street near the
FPO. This led to detention and subsequent arrest of accused No.2 and was discovered that accused No.2 shared the photograph of the vehicle
registration number of a government vehicle parked outside the FPO with accused No.4 via WhatsApp on that date. Case of prosecution is that
accused No.2 was sent by acused No.4 for survellience of accused No.1. According to prosecution, accused No.4 is the mastermind behind the
smuggling of the contraband parcel.
5. Mr. Ponda, learned Senior Advocate appearing on behalf of Accused No.4 â€" Applicant in Bail Application No.3846 of 2024 would submit that
Applicant has neither booked the package nor the package was addressed in his name. He would submit that he was not even present at the spot
where trap was set up and at the highest his remote connection in the case is only limited to the allegation that he had contacted the postman to
explore the possibility of the package being handed over to his person in the absence of the addressee (accused No.1). He would submit that the
Applicant made the following phone call upon the instance of his neighbor (accused No.3) who booked the parcel. He would submit that Applicant
was completely unaware with regards to the contents of the parcel. He would further submit that allegation that accused No.2 had shared a
photograph with him of a government vehicle on WhatsApp cannot conclude that the Applicant had knowledge of the crime and connived in its
execution. He would pray for the Application to be allowed as case of prosecution against accused No.4 is solely based on co-accused’s
statements recorded after arrest and they cannot be prima facie relied upon as evidence unless proved.
6. Mr. Setalvad, learned Senior Advocate appearing on behalf of the Accused No.2 â€" Applicant in Bail Application No.4731 of 2024 at the outset
would submit that no contraband is recovered from the possession of Accused No.2 as he merely accompanied accused No.1 who had gone to collect
the parcel upon instructions of his senior i.e accused No.4. He would submit that no incriminating material has been found against him across the
record. He would submit that it was upon spotting the government vehicle he texted a photograph of the same to accused No.4. He would submit that
inventory panchanama depicts that there is no certificate of Magistrate in respect of bulk or samples of the MDMA contraband seized as prescribed
under the Act. He would refute prosecution case and would pray for the application to be allowed since no prima facie case is made out against
accused No.2 and there is no recovery of concious possesion of the alleged conraband from him and his indictment is only on the statement of the co-
accused.
6.1. In support of his submissions, he would refer to and rely upon the following judgements:-
(i) Rajkumar Hariram Gameti v. State of Gujrat 2024 SCC OnLine SC 572;
(ii) Ram Karan v. Union Of India Cr. Appeal No. 951 of 2014 decided on 06.03.2024;
(iii) Firdoskhan v. Khurshidkhan v. The State OF Gujrat Cr. Appeal No. 244 & 245 of 2010 decided on .03.2024;
(iv) Abdul Rashid v. State of Bihar 2004 (5) SCC 151 decided on April 30, 2024;
(v) Narcotics Control Bureau, Jodhpur v. Murlidhar Cr. Misc. Application No. 5669 of 2023 decided on 05.12.2023;
(vi) Sajidhusen Anwarhusen Malek v. State of Gujrat Criminal Misc.Application (For Regular Bail â€" After Chargesheet) No. 5669 Of 2023
decided on 05/12/2023.
6.2. He would submit that taking the prosecution case from any angle qua accused No.2 there exists no material on record to show that he had
knowingly conspired for either booking the contraband from dark web or he was the addressee, that there is no money trail unearthed leading to him
from any of the co-accused, etc. He would thus pray for his Application to be allowed.
7. Mr. Setalvand and Mr. Ponda have both submitted in common that accused No.1, accused No.2 and accused No. 4 are childhood friends and
known to each other since the past 20 years and in such case there is bound to be CDR between them. They would submit that without incriminating
transcripts mere CDR and WhatsApp messages regarding payment of small and different denominations as alleged by the prosecution does not per se
make up a ground for indictment. They would submit that even if statement of accused No.1 is hypothetically considered to be true, it would still not
reveal any incriminating material against the Applicants before me. They would submit that even in the best possible case of the prosecution, they
have failed to meet the threshold that would be reasonably sufficient to curtail liberty of Applicants. They would submit that indictment of accused
No.1 to indictment of Applicants. They would submit that their linkage to the crime is solely on the basis of statement of accused No.1 having being
caught in the trap and his statement recorded in enquiry conducted under Section 67 of the NDPS Act which is a weak form of evidence considering
the provisions of Section 25 to 27 of Indian Evidence Act, 1872. They would submit that in so far as accused No.1 (who they do not represent) is
concerned the possibility of absence of mens rea cannot be ruled out in this case especially when the parcel in question is booked by another person
(accused No.3) in his name and shipped from a foreign destination and would argue that in a case where prosecution is relying upon a statement
having weak evidentiary value, proceedings to curate a trap for the accused No.1 and he being caught in such a trap, it cannot be a ground to justify
Applicant’s indictment since the act of being caught in the trap is the sole actus reus in the incident where mens rea is already under gloomy
clouds. This argument of nexus is advanced to convey that where the primary link to the crime is not sufficiently proved to be involved in the offence,
the question of the other accused having being involved in the crime is far fetched especially when such indictment is solely based upon the statement
recorded of co-accused which is not per se admissible and the corroborating material is sufficiently rebutted. Hence they would persuade me to
consider the Application for Bail of accused No.2 and 4.
8. Mr. Munde, learned Special Public Prosecutor appearing for Respondent No. 1 - Narcotic Cell Customs Preventive Rummaging and Intelligence
Wing, Mumbai Customs, Zone-III has persuaded and chosen to address the Court separately on the specific role of accused Nos. 2 and accused No.
4 in the present crime to oppose their Bail Application.
8.1. At the outset, in so far as accused No. 2 is concerned, he would submit that his role as an accomplice in the crime is that he accompanied
accused No. 1 to the post office on the specific direction of accused No. 4. He would submit that the criminal mastermind of the present crime is none
other than accused No. 4 - who took all possible precautions and thought out a well planned strategy to execute the crime by collecting the parcel
containing the alleged contraband. He would submit that for this reason accused No. 2 kept surveillance outside the post office when accused No. 1
entered the post office to collect the parcel. He would submit that accused No. 2 shared a photograph which he had taken of the government vehicle
standing outside the FPO with accused No. 4 as per his instructions. He would submit that accused No. 2 introduced accused No. 3 to accused No. 4
since accused Nos. 2 and 3 resided in the same building. He would submit that accused Nos. 1, 2 and 4 are childhood friends and accused No. 2 in
fact worked as Personal Assistant of accused No. 4 in his company called Rai Residency Pvt. Ltd. He would submit that between accused Nos. 2
and 3, there were a total 192 calls made to each other between the period 24.09.2023 to 29.11.2023 and there were multiple money transactions also.
8.2. He would draw my attention to page No. 154 of the Application to submit that this was a case of controlled delivery wherein officials of the
Foreign Post Office went to the residence of addressee i.e. accused No. 1, however his residence was found locked on two occasions between
23.11.2023 and 2811.2023. He would submit that a strong suspicion arises because on 29.11.2023 accused No. 4 made a phone call to the post office
where the subject parcel was awaiting collection and asked it to be given to his representative which was declined by the post office. For this he
would refer to the CDR record appended at page No. 154 to argue that the phone call was indeed made by accused No. 4 to the post office for
collection of the parcel and when the post office personnel refused to oblige, accused No. 4 brought the accused No. 1 on a conference call and asked
him to persuade the post office personnel to allow the said parcel to be collected by a third party. He would submit that only when the post office
refused to do so, accused No. 1 had no option than to come personally to collect the controlled delivery of the parcel when he was apprehended. He
would submit that when accused No.1 was apprehended, he informed the officials about accused No. 2 who was standing outside the post office
keeping surveillance on him. He would submit that though accused No. 3 is the main culprit who booked the parcel / alleged contraband in question,
equally accused Nos. 1, 2 and 4 are also involved in commission of the crime.
8.3. In so far as accused No. 4 is concerned, Mr. Munde would submit that he is the Director of a company called Rai Residency Pvt. Ltd. and also a
known political figure and youth president of a local political party and his father is a Corporator from a political party. He would submit that he is the
main fulcrum behind the crime in question. He would submit that accused Nos. 1 and 2 are both employees working under him and they are also his
childhood school friends known to each other for 20 long years. He would submit that before the subject parcel was collected by accused No. 1,
accused No. 4 instructed one of his employee called Mr. Piyush to go and collect the said parcel in the name of accused No. 1 by impersonating him.
He would submit that it is only when the post office personnel refused to hand over the parcel to Mr. Piyush, accused No. 4 made a phone call to the
postman in question to influence him to handover the parcel to Mr. Piyush on the ground that it contained important land documents. He would submit
that the statement of the independent witness Mr. Piyush has been recorded by the prosecution and answers given by him to Question Nos. 5 and 14
at page Nos. 129 and 130 of the Application are clear and apparent on the face of record. He would submit that a total of 32 phone â€" calls were
exchanged between accused Nos. 1 and 4 on 29.11.2023 & 30.11.2023 and they both had also met each other during that time to destroy evidence.
He would submit that prosecution has relied upon CDR records to show complicity of all accused in the crime in question and hence would pray that
both Applications be dismissed. However since the accused persons according to prosecution were childhood friends, without the CDR transcripts of
incriminating material mere reliance on CDR at this stage is not possible. At the stage of trial prosecution can prove the same.
9. Both the Learned APP, Mr. Dedhia and Ms. Bajoria, appearing on behalf of the state have supported the submissions made by Mr. Munde.
10. I have heard the learned Advocates and with their able assistance perused the record of the case.
11. Prima facie it is seen that Applicants before me are arrested on the basis of the recorded statements made by co-accused which is the only
material placed before the Court. That apart prosecution has relied upon the statement made by the independent witness one Mr. Piyush which is
appended at page No. 128 of the Application for indictment of Applicants. Prosecution has also relied upon CDR records of accused which are
appended at page Nos. 145 to 150 of the Application.
12. On perusing the record, it is prima facie seen that statements of co-accused are admittedly not admissible and cannot be read in evidence as held
by the Supreme Court in the case of Toofan Singh Vs. State of Tamil Nadu (2021) 4 SCC 1. Supreme Court has clearly held that if it is prima facie
seen that prosecution case in its entirety is based upon the statement of co-accused for indicting the accused, then those statements recorded under
Section 67 of the NDPS Act during the
course of investigation are not admissible. Admissibility of confessional statements of accused recorded under 67 of the NDPS Act was critically
examined by the Supreme Court in the case of Toofan Singh (supra) and it concluded and laid down that such confessional statements are not
admissible in evidence. It is seen that such confessional statements recorded under Section 67 of the NDPS Act are clearly hit by Section 25 of the
Indian Evidence Act, 1872. Prima facie if the aforesaid statements of co-accused are kept away from the purview of consideration, then merely on
the residuary material i.e. CDR records, prima facie, conviction of Applicants cannot be sustained. Needless to state that it shall be open to the
prosecution to prove the same in trial.
13. There is no material placed on record by the prosecution to show that either of the Applicants before me (Accused Nos.2 & 4) had knowledge or
were in conscious possession of the alleged contraband in question. Even statements of the co-accused recorded under Section 67 for indictment of
Applicants before me do not clearly reflect the above fact as to whether they had knowledge about contents of the subject parcel containing the
alleged contraband. What is important is that there is no trail of money from the Applicants and or any banking transaction of Applicants in question
with accused No.3 who is the person who booked the subject parcel containing the alleged contraband. The theory of conspiracy is therefore prima
facie not proved on the basis of material placed before me. Merely making submissions across the bar that accused No 4 is the master mind of the
entire operation and he took all precautions to remain behind the scene is not enough.
14. Provisions of Section 67 of the NDPS Act contemplate that the officer under Section 42 may during enquiry call for information, require
production and examine any person. However, it is seen that if any confession is recorded then it is inadmissible without corroboration of the same.
15. It is settled law that a Court while deciding a Bail Application has to keep in mind the principal rule of bail which is to ascertain whether the
Accused is likely to appear before the court for trial. There are other broad parameters also like gravity of offence, likelihood of Accused repeating
the offence while on bail, whether he would influence the witnesses and tamper with the evidence, his antecedents which are required to be
considered in such cases. However the metrics of judicial decision making gets amplified or rather shuttled to another facet when dealing with
offences where Section 37 of NDPS Act is attracted. In such cases one has to satisfy itself with the rigors of the twin conditions as prescribed under
Section 37 of the NDPS Act. Section 37 reads thus:-
“37. Offences to be cognizable and non-bailable.:- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27-A and also for offences involving commercial quantity
shall be released on bail or on his own bond unless:-
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence
and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2
of 1974) or any other law for the time being in force on granting of bail.â€
16. From the reading of Section 37 of the NDPS Act, it becomes clear that the legislature intends to deny bail toÂ
accused alleged to be in possession of commercial quantity of contraband in absence of court subscribing to a contrary view, however therefore if
seen it does not rule out the facet of discretion of Court to grant bail. Furthermore the Court must be satisfied that the accused is unlikely to re-offend.
It is seen that while dealing with Bail Applications the material available for consideration and adjudication is limited. In such cases, if we look
realistically the provisions of Section 37 leave limited room for a possibility of granting bail to the accused. However employing such limitation would
create a dichotomy in the current scenario where one common grievance is made before this Court repeatedly in matter after matter. It is brought to
the notice of the Court that trials are taking perpetuity to be concluded and prisons are also simultaneously overcrowded in some segments. This Court
regularly deals with Bail Applications of under-trials who have been in custody for long incarceration, and is also equally aware of the conditions of
our prisons. However it also cannot be forgotten that addiction of drugs is also a serious issue qua the society at large, and therefore provisions such
as Section 37 act as a deterrent to prospective wrongdoers. Such an incongruity leads us to answer the proposition: “How can Courts find a
balance between the two polarities?
17. In the case of Vikramjit Singh Vs. Narcotics Control Bureau BA No. 4268 of 2024 decided on 14.01.2025 the Delhi High Court found no
admissible evidence linking Applicant directly to the contraband. It noted that disclosure statement of the person from whose house the drugs were
recovered did not implicate the Applicant and was thus inadmissible under law as such a confession is hit by Section 25 of Indian Evidence Act,1872.
18. The Supreme Court in the case of Toofan Singh Vs. State of Tamil Nadu (supra) Court held that statements recorded by NDPS officers could
be construed as statements to police officers given their duties and responsibilities in preventing and detecting crime under the NDPS Act. It held that
right against self-incrimination and right to privacy under Article 20(3) and Article 21 of the Constitution apply to confessions recorded under Section
67 of the NDPS Act. It also held that officers under the NDPS Act should be construed as 'police officers' under Section 25 of the Evidence Act to
prevent coercion in recording confessions and that confessions made before such officers are inadmissible as evidence to protect fundamental rights
under Articles 20(3) and 21 of the Constitution.
19. In the case of Phundreimayum Yas Khan Vs. State (NCT of Delhi) 2023 SCC OnLine 135 the Delhi High Court has observed that disclosure
statement of co-accused is per se not admissible without there being any corroboration thereof. Relevant paragraph No.24 of the said judgement reads
thus:-
“24. The case of the prosecution, in so far as the applicant is concerned, is circumstantial, i.e. based solely on disclosure statement of the co-accused Sayed
Javed Hussain which is per se not admissible without there being any corroboration. The prosecution has not been able to establish any connection between the
subject offence and the location/CDRs of the accused persons, where the applicant is alleged to be present at the time when the contraband was collected by
Sayed Javed Hussain. Merely because the applicant had been having frequent calls with the co-accused, would not be sufficient to hold that applicant is guilty of
the subject offence.â€
20. In the case of Jasbir Singh Vs. Narcotics Control Bureau (2023) SCC OnLine Del 134 the Delhi High Court in paragraph Nos.63, 67 and 68 of
its judgment while interpreting Section 67 of the NDPS Act vis-a-vis Sections 25 and 27 of the Indian Evidence Act, 1872 held as under:-
“63. As statements recorded under Section 67 NDPS Act are inadmissible being hit by Section 25 IEA, the only way to make any part of such statements
admissible, is by way of Section 27 IEA which creates an exception and allows only such part of a confessional statement, being information leading to discovery
of some fact not previously in the knowledge of the police officer. In the present case, none of the statements of the Applicant lead to any discovery of a fact‟, and
hence, the statutory bar to their admissibility and reliability is attracted.
64. ***
65. ***
66. ***
xxxxx
67. With regards to applicability of Section 27 IEA, the fact so discovered is admissible when accompanied by the recovery of a material object and does not
include purely mental or psychological facts. It is relevant to note the observations of this Hon‟ble Court in State v. Navjot Sandhu @ Afsan Guru Crl. A. No.
80/2003 wherein this Hon‟ble Court, after placing reliance on Pulukuri Kottaya and Ors v. The King-Emperor 1946 SCC OnLine PC 49, and several other
judgments of the Hon‟ble Supreme Court and other courts, summarized the law governing Section 27 IEA as follows:
“396. We, therefore, hold that in order that Section 27 may be brought in aid, the prosecution must establish:â€
1. That consequent to the information given by the accused, it led to the discovery of some fact stated by him.
2. The fact discovered must be one which was not within the knowledge of the police and the knowledge of the fact was for the first time derived from the
information given by the accused.
3. Information given by the accused must lead to the discovery of a fact which is the direct outcome of such information.
4. The discovery of the fact must be in relation to a material object and of course would then embrace within its fold the mental condition i.e. the knowledge of the
accused of the place from where the object was produced and the knowledge that it was there.
5. Only such portion of the information as is distinctly connected with the said discovery is admissible.
6. The discovery of the fact must relate to the commission of some offence.â€
68. Therefore, for any part of the alleged disclosures of the Applicant to be admissible, it was necessary that such disclosure led the Respondent to recovery of any
contraband, or any other 'fact' related to the alleged offences. Given that none of the disclosures of the Applicant, except (at best for the recovery of a contraband
involving quantity lesser than small quantity) led to the discovery of any object, or a “new fact†thereby, such disclosures under section 67 NDPS Act are
held inadmissible in evidence.â€
21. The aforesaid decisions clearly cover the facts pleaded in the present case. Admittedly there are co-accused statements which are not
corroborated. On their own strength, they cannot be relied upon per se and hence without any other material to corroborate the said statements, guilt
of the Applicants (accused No.2 and 4) cannot be established at the stage. Admittedly there has been no conscious possession from them of the
alleged contraband. Neither there is a money trail established.
22. In the case of State Vs. Pallulabid Ahmad Arimutta SLP (Cri.) No. 3242 / 2022 dated 10.01.2022,, the Supreme Court held that CDR details of
some of the accused or allegations of tampering of evidence by accused is an aspect that can be examined at the stage of trial. Hence statement
given under Section 67 of the NDPS Act, 1985 cannot be considered at the stage of bail.
23. In the case of Bharat Chaudhary Vs. Union of India (2021) 20 SCC 50Â the Supreme Court held that printouts of WhatsApp messages
downloaded from the mobile phone or device seized cannot be treated as sufficient material to establish link between the accused persons under the
NDPS Act at the stage of bail. It also held that statement of co-accused cannot be relied upon under Section 67 of NDPS Act.
24. In the case of Mohd. Hussain Ahmed Shaikh @ Babool Bhai Vs. State of Maharashtr Baail Application No. 2000 of 2023
decided on 09.05.2024 this Court questioned the reliance on admissibility of WhatsApp messages only for indictment and custody and whether there
was sufficient material to deprive liberty to the Applicant. Court placed reliance on the decision fo the Supreme Court in the case of Bharat
Chaudhary (Supra) and held that mere WhatsApp messages solely cannot be a relied upon at the stage of bail to deprive personal liberty to the
accused under-trial.
25. The aforesaid three decisions clearly answer the prosecution charge at the stage of bail.
26. Hence in view of the above observations, both the Applicants are directed to be released on bail subject to the following terms and conditions:-
(i) Applicants are directed to be released on bail on furnishing P.R. Bond in the sum of Rs. 50,000/-each with one or two sureties in the like amount;
(ii) Applicant (Accused No.2) shall report to the concerned Investigating Officer on every Sunday between 10:00 a.m. to 12:00 p.m. for the first six months and
thereafter as and when called;
(iii) Applicant (Accused No.4) shall report to the concerned Investigating Officer on every Tuesday between 10:00 a.m. to 12:00 p.m. for the first six months and
thereafter as and when called;
(iv) Applicants shall co-operate with the conduct of trial and attend the Trial Court on all dates unless specifically exempted and will not take any unnecessary
adjournments, if they do so, it will entitle the prosecution to apply for cancellation of this order;
(v) Applicants shall not leave the State of Maharashtra without prior permission of the Trial Court. They shall deposit their passports, if any, within two weeks after
being released from prison on bail with the Trial Court;
(vi) Applicants shall not influence with any of the witnesses or tamper with the evidence in any manner;
(vii) Applicants shall keep the Investigating Officer informed of their current addresses and mobile contact numbers and / or change of residence or mobile details, if
any, from time to time;
(viii) Any infraction of the above conditions shall entail cancellation of this order.
27. It is clarified that the observations in this order are limited for the purpose of granting Bail only and they shall not be construed as an expression of
any opinion of the Court and the trial shall be adjudicated on its own merits in accordance with law.
28. Both Bail Applications are allowed and disposed.