Pramod Krishna Pandey vs The State Of Maharashtra
2021 Latest Caselaw 8729 Bom

                                                                               16. BA 2103-2021.doc
          Digitally signed
          by RUPALI
          RAJESH
RUPALI    WAKODIKAR
RAJESH
WAKODIKAR Date:
          2021.08.11            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
          16:29:32
          +0530
                                      CRIMINAL APPELLATE JURISDICTION
                                 CRIMINAL BAIL APPLICATION NO. 2103 OF 2021


                        Pramod Krishna Pandey                            ...Applicant
                            Versus
                        The State of Maharashtra                         ...Respondent

                        Mr. A.P.Mundargi, Senior Advocate, a/w Mr. Abhishek Yende a/w Mr.
                        Vinod Chauhan for the Applicant.

                        Mr. A.R.Patil, A.P.P for the Respondent-State.

                        Mr. Shreeram Shirsat a/w Mr. Amandeep Singh Sra for the NCB/UOI.


                                                   CORAM : REVATI MOHITE DERE, J.

DATE : 3rd AUGUST, 2021

P.C. :

1. Heard learned Counsel for the parties.

2. This is a second bail application preferred by the Applicant.

By this application, the Applicant seeks his enlargement on bail in

connection with C.R.No. 03 of 2015 registered with the Narcotics Control

Bureau, Mumbai for the alleged offences punishable under Sections 8(c)

read with 22 (c), 28, 29 and 30 of the Narcotic Drugs and Psychotropic

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Substances Act, 1985.

3. Learned Senior Counsel for the applicant submits that the

Applicant's first bail application was not heard on merits and that the said

application was not pressed as this Court was inclined to expedite the

applicant's trial, as the trial had commenced i.e. as eight witnesses had been

examined by then. Learned Senior Counsel submits that despite the

directions to the Trial Court to conclude the case expeditiously repeatedly

from 2019 onwards, there has been no substantial progress in the case. He

submits that as the Apex Court had permitted the Applicant to file a fresh

application for bail on merits in the event, the trial does not conclude by the

end of 2020, the Applicant filed an application, however, the same was

rejected. He submits that even now, the prosecution intends to examine

three more witnesses. He submits that the Applicant is languishing in jail

since 25th February, 2015 with no prospect of the trial concluding soon. As

far as merits are concerned, learned Senior Counsel for the Applicant

submits that except the statement of the Applicant recorded under Section

67 of the Narcotic Drugs and Psychotropic Substances Act, 1985, there is

no material/corroboration to connect the Applicant with the alleged offence.

He further submits that admittedly, nothing is seized at the instance of the

Applicant and that the Applicant has been made a scapegoat only because

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he visited Sanjay Jain's flat. Learned Counsel for the Applicant relied on

several Judgments, in particular the judgment of the Apex Court in Tofan

Singh V/s State of Tamil Nadu, 2020 SC 5592, as well as several orders

passed by this Court granting bail, relying on Tofan Singh's case.

4. Learned Special P.P. opposes the application. He submits that

commercial quantity were seized at the instance of other co-accused.

Learned Special P.P. is unable to show, any material to connect the

Applicant with the alleged offences, apart from the statement of the

Applicant recorded under Section 67 of the Narcotic Drugs and

Psychotropic Substances Act, 1985. He, however, submits that pursuant to

the disclosure made by the Applicant under Section 67 of the Narcotic

Drugs and Psychotropic Substances Act, 1985 i.e. information given, that

commercial quantity of 25 kgs of the Mephedrone, was seized.

5. Perused the papers. It may be noted that whilst dismissing the

bail applications filed by co-accused - Rakesh Kapoor and Jogabhai Ravari,

this Court (Coram : Smt.Sadhana S. Jadhav, J) vide order dated 24th

January, 2017, expedited the trial and requested the learned Special Judge

to make an endeavour to conclude the recording of evidence as early as

possible and preferable within 10 months from the date of framing of

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charge.

6. The first Bail Application preferred by the Applicant (Criminal

Bail Application No. 1632 of 2018) was not pressed by the Advocate for

the Applicant as the Court (Coram : Revati Mohite Dere, J) was inclined to

expedite the trial of the Applicant. The said order dated 18 th June, 2019

reads thus;

"1. Learned Senior Counsel for the Applicant does not press this application, as the Court is inclined to expedite the trial of the Applicant.

2. Learned Spl.P.P. states, on instructions, that till date, eight witnesses have been examined. The last witness being examined in March, 2019. She submits that the prosecution intends to examine 5 to 6 witnesses more.

3. Since the trial has commenced, it would be appropriate to direct the learned Sessions Judge to conclude the trial as expeditiously as possible and in any event, within six months from the date of receipt of this order. Order accordingly.

4. Application is dismissed as withdrawn."

7. The said order was challenged by the Applicant before the

Apex Court and the Apex Court vide order dated 15 th May, 2020 passed the

following order;

" We decline to entertain this Special Leave Petition. The Special Leave Petition is dismissed. The Trial Court is directed to complete the trial by the end of the year 2020. In case, the trial does not complete by the end of 2020, it is open for the petitioner to file fresh application for bail before the Trial Court which shall be considered on merits in accordance with law. Mr.

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Sachin Patil, learned counsel appearing for the State submits that the State will examine another 5-6 important witnesses before closing the evidence. The said submission is recorded.

Pending application(s), if any, stands disposed of accordingly."

8. Pursuant to the liberty granted by the Apex Court, the

Applicant filed a fresh application for bail before the Trial Court, as the

trial had not concluded by the end of 2020. Infact, in an application

preferred by co-accused Jogabhai Ravari (Criminal Bail Application No.

597 of 2019), this Court (Coram: Revati Mohite Dere, J) had passed the

following order on 15th February, 2021.

"1. Learned Special Public Prosecutor appearing for the NCB, on instructions, states that till date 11 witnesses have been examined in the said case and that the prosecution intends to examine 7-8 more witnesses.

2. Learned Spl.P.P. has no objection if the trial is expedited.

3. In view of the aforesaid, Learned Counsel for the applicant does not press this application and seeks leave to withdraw the same. Accordingly, the application is disposed of as withdrawn.

4. However, since the trial has already commenced i.e. so far 11 witnesses have been examined and only 7-8 more witnesses are left to be examined, the trial of the applicant is expedited. The learned Judge to conclude the said case as expeditiously as possible and in any event, within four months from the date of receipt of this order.

5. All concerned to act on the authenticated copy of this order."

9. As the trial could not conclude as directed, despite having been

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expedited, a report was sent by the learned Special Judge to this Court,

seeking extension of time to complete the trial. The said report seeking

extension was placed on board in routine course. This Court (Coram:

Sandeep K. Shinde, J) vide order dated 23rd January, 2020 passed the

following order;

"For the reasons stated in the application, time to conclude the trial in NDPS Special Case No. 31/2015 is extended by nine months as prayed."

10. It is pertinent to note, that before this Court on 18 th June, 2019,

learned Special Public Prosecutor made a statement that 8 witnesses were

examined and that the prosecution intends to examine 5-6 more witnesses.

Accordingly, the Trial Court vide the said order was directed to conclude

the trial within 6 months from the date of receipt of the order. Again,

before the Hon'ble Supreme Court, a statement was made by the

Prosecutor that 5-6 witnesses are to be examined, pursuant to which, the

Apex Court vide order dated 15th May, 2020 directed the Trial Court to

complete the trial by the end of 2020. Vide the said order, the Applicant

was granted liberty to file a fresh bail application, which was to be

considered on its own merits in accordance with law. It may be noted that

when co-accused Jogabhai's bail application came up before this Court on

15th February, 2021, the learned Special Public Prosecutor submitted that 11

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witnesses were examined and that the prosecution intends to examine 7-8

more witnesses. Accordingly, again the trial was expedited and the Trial

Court was directed to conclude the trial within 4 months. The learned

Special Public Prosecutor who appeared in the applications before the High

Court, in particular, when the order dated 15 th February, 2021 was passed,

ought to have pointed out the earlier orders passed in the same case. It was

the bounden duty of the Special Public Prosecutor as an officer of the

Court, to bring to the notice of this Court, all the orders passed by this

Court and the Apex Court. Unfortunately, it was not done. On 18 th June,

2019, Learned Special Public Prosecutor made a statement that 8 witnesses

were examined and that only 5-6 witnesses were left to be examined,

whereas, on 15th February, 2021, learned Special Public Prosecutor made a

statement that 11 witnesses were examined and 7-8 more witnesses were to

be examined. Presumably and understandably, the said statements were

made on the instructions of an officer of the NCB. On all occasions,

instead of arguing on merits, the Prosecutor gave their no objection to the

trial being expedited, since the trial had already commenced. Hence the

Applicant's bail application was not heard on merits. The fact remains that

the statements made by the Prosecutor with respect to examination of

witnesses, were incorrect. No doubt, no fetters can be put on the right of

the prosecution to examine as many witnesses, it intends to examine,

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however, the prosecution is not expected to mislead the Court. Now, what

is the guarantee that today's statement made by the learned Special Public

Prosecutor, on instructions, that the prosecution intends to examine only 3-

4 witnesses, is true.

11. Considering the aforesaid, the aforesaid application was heard

on merits for the first time. It appears that the only evidence as against the

applicant is his statement recorded under Section 67 of the Narcotic Drugs

and Psychotropic Substances Act, 1985. Apart from the same, there is no

corroboration to the said statement. It is not the prosecution case that any

contraband was seized from the Applicant. According to the prosecution,

the Applicant in his statement recorded under Section 27 of the NDPS Act

had given information of a possible delivery of contraband and that

pursuant thereto a trap was laid and co-accused were arrested whilst

delivering 25 Kgs of Mephedrone to some persons (co-accused). The Apex

Court in the case of Tofan Singh (Supra) whilst deciding a reference,

whether a statement recorded under Section 67 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 was admissible, has answered the

reference in para 155 as under;

"155. (i) That the officers who are invested with powers under Section 53 of the NDPS Act are "police officer" within the meaning of Section 25 of the Evidence Act, as a result of which

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any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under NDPS Act.

(ii) That a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act."

12. Infact, while considering the Bail Application of co-accused

Rohan Gawans, also a co-accused in the present C.R., this Court (Coram:

Prakash D.Naik, J) considered the statement of the said co-accused

recorded under Section 67 of the Narcotic Drugs and Psychotropic

Substances Act, 1985, wherein the said accused had admitted to the role

played by him and after considering various Judgments, enlarged co-

accused Rohan Gawans on bail. In the present case also, the prosecution is

primarily relying on the statement of the Applicant recorded under Section

67 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which is

now inadmissible in view of Tofan Singh's Case. Admittedly, there is no

recovery of the contraband from the Applicant. Similarly placed co-

accused has been enlarged on bail, whose statement was also recorded

under Section 67 of the Narcotic Drugs and Psychotropic Substances Act,

1985 and from whom there is no recovery. Considering the aforesaid, the

embargo to Section 37 of the NDPS Act will not cause any impediment in

granting bail to the Applicant. Accordingly, the application is allowed and

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the Applicant is enlarged on bail on the following terms and conditions:-

ORDER

i) The Applicant be enlarged on bail on furnishing P.R. Bond in

the sum of Rs.50,000/- with one or two sureties in the like amount;

ii) The Applicant shall report to the NCB Office on every

Saturday from 11.00 a.m. to 12.00 noon, till the conclusion of the trial

unless the date of the Trial Court falls on Saturday;

(iii) The Applicant shall inform his latest place of residence and

mobile contact number immediately after being released and/or change

of residence or mobile details, if any, from time to time to the Court seized

of the matter and to the Investigating Officer of the concerned Police

Station;

(iv) The Applicant shall remain present on every date before the

Trial Court and will not seek any adjournment and will co-operate in the

conduct the trial;

(v) The Applicant shall not tamper with the evidence or attempt to

influence or contact the complainant, witnesses or any person concerned

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with the case;

(vi) The Applicant shall file an undertaking with regard to clauses

(ii) to (v) in the trial Court, within two weeks of his release;

(vii) If there is a breach of any of the aforesaid conditions, the

prosecution shall be at liberty to seek cancellation of the applicant's bail.

13. The application is allowed in the aforesaid terms and is

accordingly disposed of.

14. It is made clear that the observations made herein are

prima facie, and the trial Court shall decide the case on its own merits, in

accordance with law, uninfluenced by the observations made in this order.

15. All concerned to act on the authenticated copy of this order.

REVATI MOHITE DERE, J.

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