Mahboob Khan And Another vs State Of U.P. And Another
2023 Latest Caselaw 20124 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:155008
 
Court No. - 77
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 59697 of 2022
 

 
Applicant :- Mahboob Khan And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Santosh Kumar Kesarwani,Aditya Vishal Chaurasia
 
Counsel for Opposite Party :- G.A.,Krishna Agarawal
 

 
Hon'ble Mrs. Jyotsna Sharma,J.

01. Heard Shri Santosh Kumar Kesarwani, learned counsel for applicants, Sri Krishna Agarawal, learned counsel for the opposite party and learned A.G.A. for the State.

02. The present bail application has been filed by the applicants seeking bail in Sessions Trial No.655 of 2016, arising out of Case No.2 of 2016, under Sections 8/20/43 of NDPS Act, P.S. D.R.I., District Gorakhpur.

03. As per prosecution/complaint filed under section- 8/20/43 of NDPS Act, 1985 by the Intelligence Officer in the Directorate of Revenue Intelligence, Sub Regional Unit, Gorakhpur; the Senior Intelligence Officer, Directorate of Revenue Intelligence, Lucknow Zonal Unit, Lucknow received information regarding transportation of ganja from Coochbehar (West Bengal); the complainant along with other members of the team proceeded and reached the place of occurrence i.e. NH-28 (Gopalganj-Gorakhpur); at 20.30 hours the truck bearing registration no.RJ 02 GA 2135 was intercepted; the truck was being driven by Samsu Khan of Alwar, Rajasthan and was occupied by Sahab Khan of the same place; they were informed in writing about their right to be searched before the Magistrate/Gazetted Officer; Next thereafter, the truck was searched upon and a total 25 packets of 10 kg each wrapped in red colour plastic containing ganja weighing 262.25 kg. were recovered from the cabin and the roof of the truck, valued at Rs.10,04,000/-; samples were drawn from each packet; the ganja was seized under Section 43 of the N.D.P.S. Act and the recovery memo was prepared; the driver disclosed that ganja was loaded on his truck at the behest of Mahboob Khan and Anwar Khan (the present applicants); he also disclosed that both were known to them since childhood as they were residents of same village; the truck driver was assured of money for transporting the same; they had a meeting with instant applicants at Baxirhat at the border between Bangal and Assam and was provided mobile number of one "Bisnoi" by Khan brothers. This man "Bisnoi" had asked him to deliver 250 kg. Ganja at Sikar, Rajasthan and had promised to pay him Rs.60,000/- after successful delivery to the consignee; co-accused Sahab Khan and Samsu Khan came into contact of "Bisnoi" through the present applicants only and it was known to them the instant applicants too were carrying ganja in their trucks; Mahboob Khan and Anwar Khan had moved on with their respective trucks to their respective destinations. The other occupant of truck Sahab Khan corroborated the version of the accused Samsu Khan and said that he met with Khan brothers i.e. Mahboob Khan and Anwar Khan at the border of Bengal-Assam. They had also loaded brooms in their trucks; the ganja was supposed to be delivered at Sikar, Rajesthan and he was offered money for successful delivery at the right place.

04. The main contention of the applicants is that prosecution case is based on statements of Sahab Khan and Samsu Khan which was elicited from them on the basis of notice under Section 67 of NDPS Act; no blind reliance can be placed on such statement; the applicants are neither cosignor nor consignee of ganja; nothing has been recovered from their possession; they have been implicated in this case on the basis of presumptions and assumptions; the truck from which alleged recovery has been made do not belong to the applicants; they were not arrested on the spot; when the incident took place they were imprisoned in Central Jail Muzaffarpur, State of Bihar in relation to an arrest made by D.R.I., Patna; they were enlarged on bail by order of the Patna High Court on 23.08.2022 and have been arrested in the present case on 21.09.2022; the provisions of Section 42, 50, 51, 52, 52-A, 55 and 57 of the NDPS Act have not been complied with.

05. The bail application of the applicant has been opposed with vehemence on behalf of the Directorate of Revenue Intelligence highlighting certain facts and circumstances and arguments as below-:

1. Complicity of the instant applicants Mahboob Khan and Anwar Khan came in the picture on the basis of statements given by co-accused driver Samsu Khan and occupant of the truck Sahab Khan; as such the statements/information given by the co-accused are valuable piece of evidence for the purpose of inquiry/investigation and cannot be discarded at the stage of bail, especially when there are a number of other facts and circumstances demonstrating their involvement.

2. Evidence has been collected to show that brooms were loaded on the truck at some other place and during transit the packets of Ganja were loaded on the truck at the behest of the present applicants who were the middle men and were involved in the crime since uploading of narcotic substance.

3. This evidence has come that the driver and occupant of the truck having huge quantity of ganja found loaded and concealed in the cabin and roof of the truck, was in fact provided to them by the present applicants, who were being guided by one Bisnoi. The driver and other occupant of the truck came into contact with that man Bisnoi on being provided his mobile by the applicants only. Their role as abettor and conspirator of the crime is quite clear.

4. The applicants had loaded one more consignment of 240 kg. ganja in their own trucks and had moved on which was intercepted before they could reach to their destination at Muzafarpur; a case being Case Crime No.58 of 2016 under N.D.P.S. Act was lodged againstMahboob Khan and Anwar Khan; they were put to trial and were convicted and sentenced to 10 years of imprisonment; they are previous convict and their antecedents further strengthened the theory of their involvement in the present case. Presently they are on bail by order of Patna High Court passed in Criminal Misc. Bail Application no.2374 of 2022.

5. The role of the applicants is not limited for providing access to a person named 'Bisnoi' as the mastermind but includes active involvement in association with 'Bisnoi', the co-accused persons Sahab Khan and Samsu Khan; they are engaged in the trade in an organized manner.

6. During investigation it was found that the applicants were using mobile numbers issued in the names of other persons to avoid detection. In the investigation it was found that SIM being used by accused applicant Anwar Khan was issued in the name of Baijnath Rai and one being used by accused applicant Mahboob Khan was issued in the name of Mahendra Kumar; both the persons were non existent.

7. It is contended on behalf of the opposite side that Section 37 of N.D.P.S. Act is applicable in the instant case; the provision cannot be ignored at the time of passing orders on bail application; there is no reasonable ground for believing that they have not been involved in the instant case. Further there is no reasonable likelihood that they will not commit any offence. Continuing with this argument it has been pointed out that the applicants are previous convict and presently on bail granted by Patna High Court.

8. The chain of events show that they were actively involved and were in constructive but conscious possession of the ganja.

9. To counter the argument of long detention of the applicants (for last one year in this case) the opposite party relies on judgments of Hon'ble Supreme Court in the case of NARCOTICS CONTROL BUREAU VS. MOHIT AGGARWAL 2022 liveLaw (SC) 613 submitting that period of detention cannot be sole consideration to remove the bar put by Section 37 of the NDPS Act. The Supreme Court examined provision of Section 37 of the N.D.P.S. Act and the meaning of reasonable ground used in Section 37(1)B and gave an opinion that even if confessional statements are kept away, the other circumstantial evidence brought on record by the NCB ought to have dissuaded by the High Court in exercise of his discretion in favour of the accused. The Supreme Court took this view in the background of observation made in the impugned order of bail that since nothing was found from the possession of the respondents he is not guilty of the offence for which he has been charged. It said that such assumption would be premature at this stage and set aside the bail order.

10. Further, the opposite party relies on judgement of Hon'ble Supreme Court in the case of Union of India vs. Ajay Kumar Singh @ Pappu 2023 0 Supreme (SC)285. In that case nothing was recovered from the custody of the respondent-accused and the information about him was elicited from the statements given by co-accused under Section 67 of NDPS Act and that allegations were that the respondent accused was the kingpin and the organizer of illicit ganja. The Hon'ble Supreme Court set aside bail granted to him.

11. Lastly, as regard grant of bail to co-accused Samsu Khan is concerned, it is pointed out that since he is enlarged on bail, he is not available and that further proceedings of the case has been stalled because of his continued absence. This fact strengthened the apprehension that the applicants may also abscond once released on bail.

12. Accused Samsu Khan was granted bail on medical ground, therefore, the applicants cannot claim any parity with him.

06. I considered the rival submission in the light of material on record, the nature of accusation, the quantity recovered which is commercial, the role ascribed to the applicants of acting behind the scene, severity of punishment, the probability of fleeing and all attending facts and circumstances. In my view, to save the society from the menace of crimes relating to drugs and psychotropic substance which is being pushed in a well planned organized manner, greater care is required while considering the bail applications. In my view, there is no good ground for grant of bail to the applicants, therefore it is dismissed.

Order Date :- 2.8.2023

Asha