Bombay High Court
Jabbar Humjekhan Mulla vs The Commissioner Of Customs And ... on 28 January, 2022
Bench: Virendrasingh Gyansingh Bisht
BA-3419-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 3419 OF 2021
Jabbar Humjekhan Mulla ... Applicant
V/s.
The Commissioner of Customs and Anr. ... Respondents
Mr. Ayaz Khan a/w Mr. Dilip B. Shinde i/b Shantanu Adkar, for
the Applicant.
Mr. Jitendra Mishra a/w Ashutosh Mishra, for Respondent No.1.
Mr.H.J.Dedhia, APP for the Respondent No.2- State.
CORAM : V. G. BISHT, J.
RESERVED ON : 17th DECEMBER, 2021.
PRONOUNCED ON : 28th JANUARY, 2022.
P.C. :
1 The present application has been moved by the
applicant under Section 439 of the Code of Criminal Procedure in
Crime No. 2 of 2020 registered with the Inspector of Custom
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(Narcotic Cell), Pune, for offences punishable under Section 8(c),
20(b)(ii) C, 25 and 29(1) of Narcotic Drugs and Psychotropic
Substances Act (NDPS Act).
2 It is the case of the prosecution that the Office of
Custom (Narcotic Cell) Pune, received information regarding
Ganja trafficking and on the basis of said information the office
of the Narcotic Cell, Customs Pune kept vigil and surveillance on
Naldurg-Solapur road near Boramani Village, Solapur in the
presence of panch witnesses. It is further case of prosecution
that at the relevant time the officer noticed two vehicles which
were intercepted. Upon search, it was found that the transporter
had concealed Ganja in the cavity created at the roof of the
vehicle and it was about 868 gms. Accordingly, the contraband
came to be seized.
3 It is further case of the prosecution that the
statements of occupants of the vehicle were recorded and they
revealed the applicant to be a purchaser and therefore, a notice
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under Section 67 of the NDPS Act was served on the applicant.
His statement was also recorded under Section 67 of the NDPS
Act and the applicant allegedly admitted to had purchased 50 kg
of Ganja from Prakash Shelke. Accordingly, the applicant came
to be arrested.
4 Mr.Ayaz Khan, learned counsel for the applicant,
submits that the prosecution is relying on the statements of co-
accused recorded under Section 67 of the NDPS Act, which in
itself are contradictory. Even otherwise, it has been held by our
High Court and as also by Hon'ble Apex Court that the
statements recorded Section 67 of the NDPS Act is not
admissible. There is no recovery at the instance of applicant nor
he has been charged in the FIR. Its only on the basis of those
inadmissible statements of co-accused recorded under Section 67
of the NDPS Act, the applicant has been arraigned as an accused.
Investigation is over. There is no necessity of custody of
applicant. In such circumstances, the applicant deserves to be
released on bail, argued learned counsel. The learned counsel
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also placed reliance in Bharat Choudhary vs Union of India1,
Dheeren Kumar Jaina vs Union of India2, Sanjeev Chandra
Agarwal and Anr. Vs Union of India3 and Shreyansh Jhabak vs
The State of Chhattisgarh4
5 Mr.Dedhia, learned APP, on the other hand, opposed
the submissions by pointing out the CDR record and emphasized
that the applicant on the date of offence was continuously in
touch with other accused. There are statements of co-accused
recorded under Section 67 of the NDPS Act, which also show
complicity of applicant in crime.
6 Similar submissions have been advanced by learned
Counsel Mr.Jitendra Mishra for respondent No.1, by placing
reliance in Nandu Subhash Varpe vs. The State of Maharashtra5
6 Perused the FIR and the investigation papers.
1 Petition for Special Leave to Appeal (Criminal) No. 5703 of 2021.
2 Criminal Appeal No. 965 of 2021 (Arising out of SLP (Cri) No. 4432 of 2021)
3 Criminal Appeal No(S).1273/2021 (@Diary No. 24622/2017)
4 Petition(s) for Special Leave to Appeal (cri) No(s). 5458/2021.
5 Bail Application No. 666 of 2021
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7 There is no dispute that on the day of incident the
applicant was neither found on the spot nor he was in possession
of the contraband. It is clear from the record that it is only on
the basis of statements of co-accused, namely, Prakash Shelke
and Brahmadev Judger recorded under Section 67 of the NDPS
Act and as also the statement of applicant himself, he came to be
arraigned as an accused.
8 It is by now well settled by catena of decisions and more
particularly the judgment of Hon'ble Apex Court Tofan Singh vs.
State of Tamil Nadu6 that the statements of accused recorded
under Section 67 of the NDPS Act cannot by themselves be relied
upon to return an order of conviction against the concerned
accused. Similar ratio is laid down by the Hon'ble Apex Court in
the case of Bharat Choudhary (Supra), Dheeren Kumar Jaina
(Supra) and Sanjeev Chandra Agarwal (Supra).
9 As far as the decision of this Court in Nandu Subhash Varpe
6 2020 SCC Online SC 882.
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(supra) is concerned, the Court while considering the Bail
Application of the accused therein, observed that the effect of
the statement recorded under Section 67 of the NDPS Act will
have to be considered at a later stage by the trial Court inasmuch
as the said statement was not retracted by the accused. With due
respect, I am unable to persuade myself to follow the observation
so made by this Court in terms of ratio laid down in the aforesaid
decisions.
10 In view of above, I am inclined to allow the application.
Hence, I pass the following order :
ORDER
(i) Applicant - Jabbar Humjekhan Mulla shall be released on
bail in Crime No. 2 of 2020 registered with the Inspector of
Custom (Narcotic Cell), Pune on his executing P.R.Bond in
the sum of Rs.50,000/- with one or two sureties in like
amount.
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(ii) As a condition of this order, the applicant shall not tamper with
the prosecution evidence.
(iii) The applicant shall not directly or indirectly, make any
inducement, threat or promise to any person acquainted with
the facts of the case, so as to dissuade him from disclosing such
facts to the court or to the Police Officer.
(iv) The applicant should cooperate the trial Court for expeditious
disposal of the Special Case pending against them.
(v) The applicant should not repeat similar crime in future. If it is
found that the applicant is repeating commission of similar
offence in future, the prosecution is at liberty to get the bail of
the applicant cancelled.
(vi) The applicant should surrender his passport with the Inspector
of Custom (Narcotic Cell), Pune and he shall not leave India
without prior permission of the trial Court.
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(vii) Bail before the trial Court.
(viii) Parties to act on copy of this order duly authenticated by
the Sheristedar of this Court.
(ix) It is made clear that the observations made herein are prima
facie and the trial Court shall decide the case on its own
merit, in accordance with law, uninfluenced by the
observations made in this order.
(x) The application is allowed in the aforesaid terms and stands
disposed off accordingly.
(V. G. BISHT, J.)
REKHA
PRAKASH
PATIL
Digitally signed by
REKHA PRAKASH
PATIL
Date: 2022.01.28
13:56:43 +0530
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