Bombay High Court
Saddam Ajmeri Mubarak Ajmeri vs Narcotic Control Bureau, Mumbai ... on 23 December, 2022
Bench: S. G. Mehare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
BAIL APPLICATION NO.1714 OF 2022
1. HARDAYAL SINGH S/O GULAB SINGH KATODIYA
2. JIVAN SINGH S/O AVTAR SINGH CHOPRA
VERSUS
THE UNION OF INDIA
...
Advocate for Applicants : Mr. Rajendrraa Deshmukkh (Senior
Counsel) a/w Mr. G. A. Kulkarni i/b Mr. Devang R. Deshmukh.
Advocate for Respondent-UOI : Mr. R. R. Bangar h/f Mr. A. T.
Jadhavar (ASGI).
...
WITH
BAIL APPLICATION NO.1718 OF 2022
SADDAM AJMERI S/O MUBARIK AJMERI
VERSUS
NARCOTIC CONTROL BUREAU MUMBAI THROUGH ITS
INTELLIGENCE OFFICE NCB UNIT, MUMBAI
...
Advocate for Applicant : Mr. Narwadkar M. D.
Advocate/ASGI for Respondent-NCB : Mr. S. S. Deve.
...
CORAM : S. G. MEHARE, J.
RESERVED ON : 16.12.2022
PRONOUNCED ON : 23.12.2022
ORDER :-
1. The applicants are claiming bail under Section 439 of the
Cr.P.C. for the offence registered under Section 8(c) read with
Sections 15(c), 18, 25, 27-A, 29 of Narcotic Drugs and
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Psychotropic Substances Act, 1985 (in short 'NDPS Act') in
Crime No.99 of 2021 registered by the Intelligence Officer,
Narcotics Control Bureau, Mumbai Zonal Unit, Mumbai.
2. Applicants Hardayal Singh and Jivan Singh have been
allegedly arraigned as accused of possessing narcotics drugs
and its seizure from their shops. They have been arrested on
23.11.2021. Applicant Saddam Ajmeri was arrested on
23.11.2021.
3. The prosecution case, in brief, was that on secret
information, in the presence of two panchas, a seizure was
effected in a shop situated Opposite Lohlangar Gurudwara,
Sagam Road, Carrier Co., Hingoli Hyderabad Bypass Road,
Kamtha, Nanded. In the said seizure, 111 kg, of Poppy Straw,
including Powder and 1.4 kg, of black sticky substance
purported to be Opium and cash of Rs.1,55,490/-. In response
to the notice, all applicants appeared before the investigation
officer. Their voluntary confessional statements under Section
67 of NDPS Act were recorded, and then they were arrested. It
has been alleged that they were involved in the conspiracy to
procure, possess, transport, sell, purchase, finance, and commit
offences under the NDPS Act. It has been alleged that the
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quantity of seized Poppy Straw was commercial. The samples
from seized contraband were taken for chemical analysis and
sent to the concerned laboratories. Prima facie evidence was
against the applicants.
4. Learned Senior Counsel Mr. Deshmukkh for applicants
Hardayal Singh and Jivan Singh has vehemently argued that
the report of New Custom House Laboratory, Mumbai, dated
30.12.2021 was that the sample does not show the
characteristics of poppy opium. Same way, the second report
was also negative. The report dated 23.12.2021 regarding the
brown colour dried and ruptured pieces of capsules (straw)
answered a positive test for the presence of Morphine,
Codeine, Thebaine and Papaverine qualitatively. However, the
weight of the samples does not match the seizure of samples
taken at the time of the raid. He would vehemently further
argue that considering the said quantity under Section 2(xv),
the preparation containing not more than 0.2 % of Morphine.
It is not included the definition of Opium. Therefore, it cannot
be said that it constitutes an offence under NDPS Act. He has
further argued that the learned Magistrate, while granting
certification of the sealed drugs, found brownish leaves. The
Magistrate issued the certification to the inventory under
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section 52-A of the NDPS Act. However, section 52A of NDPS
Act provides for the disposal of seized narcotic drugs. Reading
sub-section (2) of section 52-A of the NDPS act, the arguments
appear incorrect. The said sub-section authorizes the
Magistrate to certify the inventory. He further argued that the
premises where the alleged drugs were seized were locked
since it was a Covid- 2019 pandemic. The investigating agency
has made a false statement that the accused were asked to
open the premises. However, they did not open the premises.
Hence, its locks broke open. However, at that time, the
applicant was in his office at shop No.33, Nagina Ghat Road,
Nanded. Hence, the powers under section 42 (1) (b) of the
NDPS Act have been misused. The alleged raid itself is illegal.
In a notice under Section 67 of the Act, no crime number was
registered. However, in a letter dated 22.11.2021 addressed to
the Police Inspector, Police Station Vimantal, Nanded, NCB
Crime No.99 of 2021 appeared surprisingly. This seems to be a
mess and a misuse of the powers. Nothing surfaced in the
investigation about the ownership of the premises where the
seizure panchanama was drawn. If it was a conspiracy, it is to
be proved in the trial. The licence was in the name of the
applicant's mother. He has further argued that Section 42(2)
and 50 of NDPS Act has not been complied with, and no copy
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was sent to the superior within 72 hours. The statement under
Section 67 of NDPS Act is not admissible. He relied on certain
case laws. He prayed to grant the bail.
5. Learned counsel Mr. Narwadkar for applicant Saddam
adopting the arguments of learned senior counsel Mr.
Deshmukh, further argued that the applicant has been
arrested on the statement of the co-accused. It has been
alleged against him that he was supplying the material. He is a
resident of Mandsaur, State of Madhya Pradesh. The
photograph was shown in a statement dated 23.11.2021, and a
phone number was given, but there was no communication. He
has been arrested only on suspicion. Nothing incriminating
material is recovered from him. Hence, he may be granted bail.
6. Learned counsel/ASG Mr. Jadhavar for the NCB has
vehemently argued that necessary permission for a raid was
obtained. The Laboratory Report of brown colour-dried leaves
were positive. The relevant compliance has been done. The
applicants were served with a notice under section 50 of the
Act. The seized quantity was commercial. There are
antecedents to the discredit of applicant Hardayal Singh. The
crimes under Essential Commodities Act and Maharashtra
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Prohibition Act were registered against him. After cancelling
the licence also, the contrabands were in their possession. All
the applicants had a telephone conversation that prove the
link.
7. The other counsel/ASG Mr. Deve for the Bureau, has
vehemently argued that applicant Saddam was supplying the
contraband. They were doing business systematically even in
Covid-2019. They may tamper with the prosecution witnesses.
The trial is likely to be opened shortly, and at the most trial
may be expedited instead of granting bail.
8. The learned senior counsel, Mr. Deshmukkh, relied upon
the case of Tofan Singh Vs. The State of Tamil Nadu
(Cri.Appeal No.152 of 2013 with other criminal appeals
decided on 29.10.2020). It has been held, in that case, that
the confessional statement recorded under Section 67 of the
NDPS Act would remain inadmissible in the trial of the offence
under NDPS Act. The Hon'ble Supreme Court in the case of
State by (NCB) Bengaluru Vs. Pallulabid Ahmad Arimutta and
Another; 2022 SCC Online SC page No.47 held that
confessional statements recorded under Section 67 of the
NDPS Act would remain inadmissible in the trial of the offence
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under NDPS Act. Arrest made by the petitioner NCB on the
basis of the confessional/voluntary statement of the
respondent, co-accused under Section 67 of the NDPS Act,
cannot form a basis for overturning the impugned order
releasing them on bail. The issue of admissibility of the
confessional statement under Section 67 of NDPS Act is no
more res integra.
9. In the case at hand, the NCB called the accused on
serving notice, and then they took the search of the shops
wherein the alleged narcotics drugs were found. The record
reveals that there were three shops, but they were locked. The
accused has a case, the shops which the investigation agency
allegedly asked the accused to open the lock, but the accused
were not there. Therefore, the seizure contravened section 52A
of the NDPS Act. However, the record reveals that the accused
were asked to unlock the premises. They informed the
investigation Officer that the key was lying with the employee.
Hence, the locks were broken with a hammer in their presence
on their say. Hence, there appears, no substance in the
arguments that Section 52A of the NDPS Act has been violated.
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10. The Chemical Analysis Report was that the sample does
not show the characteristics of Opium. The samples of Poppy
straw sent to the chemical analysis were mostly the same
quantity except for a few grams difference. It was a negligible
difference in a few samples. Hence, it cannot be said that the
samples collected and certified by the learned Magistrate and
sent to the chemical analysis were different. Except for the
above evidence, the prosecution rests upon the confessional
statement of the accused under Section 67 of the NDPS Act.
The Law is set at rest that such a confessional statement is
inadmissible in the trial and may not be a ground to refuse the
bail.
11. The quantity seized from the applicants was commercial
quantity. Therefore, clause (ii) of Section 37 of the NDPS Act
needs consideration. The Court has held that the confessional
statement of the accused is inadmissible. The only ground to
refuse the bail would be the likelihood of committing any
offence while on bail. The expression "reasonable grounds" has
been defined by the Hon'ble Supreme Court in Union of India
Vs. Shiv Shanker Kesari (2007) 7 SCC 798. The Hon'ble
Supreme Court has observed that the expression "reasonable
grounds' means something more than prima facie grounds. It
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connotes substantial probable causes for believing that the
accused is not guilty of the offence charged, and this
reasonable belief contemplated in term points to the existence
of such facts and circumstances as are sufficient in themselves
to justify recording of satisfaction that the accused is not guilty
of the offence charged. It has also been held in the said case
that while considering the bail application with reference to
section 37 of the Act, the Court has not to consider the matter
as if it is pronouncing a judgment of acquittal and recording a
finding of non-guilty.
12. The prosecution has a case that the crime under the
Essential Commodities Act and the Maharashtra Prohibition
Act has been registered against the applicant Hardayal Singh.
It has been tried to argue on the basis of this fact that this is a
reasonable ground to believe that he may commit any offence
while on bail. In clause (ii) of Section 37, the words have been
used that he is not likely to commit any offence while on bail.
The past of the accused may be considered, but the prosecution
has to produce the material that the accused may commit any
offence while on bail. In view of the provisions of Law and
absence of material, this Court is of the view that it cannot be
accepted at this juncture that the accused/applicants may
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commit any offence while on bail. There are no reasonable
grounds to believe that the applicants may commit any offence
while on bail. The applicants are behind the bar for more than
one year. The investigation has been completed. The trial may
take its own time. Their further detention would serve no
purpose. Given the above discussion, the Court is of the view
that the applicants deserve bail. Hence, the following order :
ORDER
(i) Bail Applications are allowed.
(ii) Applicant 1. HARDAYAL SINGH S/O GULAB
SINGH KATODIYA, 2. JIVAN SINGH S/O AVTAR
SINGH CHOPRA in Bail Application No.1714 of
2022 and Applicant SADDAM AJMERI S/O
MUBARIK AJMERI in Bail Application No.1718 of
2022 be released on bail on furnishing P.B. and
S.B. of Rs.2,00,000/- (Rupees Two Lakh only)
each with one or two equal solvent sureties of
Rs.1,00,000/- each, in Crime No.99 of 2021,
registered by Narcotics Control Bureau, Mumbai
Zonal Unit, Mumbai, for the offence punishable
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under Section 8(c) read with Sections 15(c), 18,
25, 27-A, 29 of NDPS Act, on the conditions that;
(a) The applicants shall not tamper with the
prosecution witnesses.
(b) They shall attend the trial on effective dates.
(c) They shall inform their residential address
and cell phone numbers to the police.
(S. G. MEHARE, J.)
...
vmk/-
