Bombay High Court
Ashik Vilas Kelzarwar vs State Of Mah. Thr. Pso, Ps Umred, Tah. And ... on 1 February, 2024
2024:BHC-NAG:1507
27.ABA.11.23.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (ABA) NO.11 OF 2024
Ashik Vilas Kelzarwar ..vs.. State of Maharashtra
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
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Mr. A.A. Dhawas, Advocate for the applicant.
Ms. Udeshi, Addl.P.P for the State.
CORAM:- URMILA JOSHI-PHALKE, J.
DATED :- FEBRUARY 1, 2024.
Heard.
2. By this application, the applicant is seeking
anticipatory bail in respect of Crime No.536/2023
registered with Umred Police Station, Nagpur Rural for
offences punishable Sections 20(b)(ii), 29 and 8(c) of the
Narcotic Drugs and Psychotropic Substances Act, 1985
(the NDPS Act).
3. The applicant is apprehending his arrest at
the hands of the police as crime is registered on the basis
of report lodged by the informant Pradip Chaware who is
attached to the police station Umred District Nagpur,
alleging that on secret information was received that two
persons carrying ganja in a private bus proceeding
towards the Umred. In pursuance of the said secret
information he along with the raiding party members
intercepted the bus. The Panchas were called by taking
entry in the station diary, and thereafter, two persons were
taken into the custody namely Raunak Shimpi and Aaditya
Waghmare aged about 22 years. Upon their personal
search after following due procedure, Ganja was found in
their possession, therefore, they were arrested. During the
interrogation, name of the present applicant was revealed
and therefore, the police is behind him to arrest and
therefore, the applicant approached to this Court for grant
of anticipatory bail.
4. Learned Counsel for the applicant submitted
that except the statement of the co-accused there is no
other material to connect the present applicant with the
alleged offence. Now the investigation is completed and
charge-sheet is filed against the other co-accused. His
custodial interrogation is not required. Moreover, the
confessional statement of the co-accused is not admissible
against the present applicant in view of the observation of
the Honourable Apex Court in the case of Tofan Singh vs.
State of Tamil Nadu, (2021) 4 SCC 1 and prays for
releasing the applicant on bail.
5. The said application is strongly opposed by
learned Additional Public Prosecutor on the ground that at
this stage, the observation of the Honourable Apex Court
in the case of Tofan Singh vs. State of Tamil Nadu (supra)
are not helpful to the present applicant in view of the
judgment of the Honourable Apex Court in The State of
Haryana vs. Samarth Kumar, reported in 2022 LiveLaw
(SC) 622. She submitted that the custodial interrogation
of the present applicant is required to ascertain his
connection with the other co-accused and his involvement
in the present crime. In view of that, the application
deserves to be rejected.
6. I have heard learned counsel for the parties.
Perused the investigation papers. There is no dispute as to
the fact that the involvement of the present applicant is
revealed on the basis of the statement of the co-accused.
Admittedly, the present applicant was not found in
possession of the said contraband articles. His accusation
is on the basis of the confessional statement of the co-
accused.
7. Learned Counsel for the applicant placed
reliance on the judgment of the Honourable Apex Court in
Tofan Singh vs. State of Tamil Nadu (supra) wherein it is
held that a confessional statement recorded under Section
67 of the NDPS Act will remain inadmissible in the trial of
an offence under the NDPS Act. While considering this
aspect the Honourable Apex Court in the case of The State
of Haryana vs. Samarth Kumar (supra) observed that the
respondent may be able to take advantage of the decision
in the case of Tofan Singh vs. State of Tamil Nadu,
perhaps at the time of arguing the regular bail application
or at the time of final hearing after conclusion of the trial.
To grant anticipatory bail in a case of this nature is not
really warranted and the order passed by the High Court
was set aside. In view of above observation made by the
Honourable Apex Court, in the present case also the
applicant is implicated on the basis of confessional
statement of the co-accused. The disclosure statement and
the CDR which shows that the applicant was in continuous
contact with the co-accused.
8. The Honourable Apex Court observed that
this judgment in case of the Tofan Singh vs. State of Tamil
Nadu is helpful to the respondent perhaps at the time of
arguing the regular bail application or at the time of final
hearing after conclusion of the trial.
9. In the present case also from the possession of
the co-accused 18.700 kilograms contraband article is
seized. The CDR reports are collected by the Investigating
Officer which shows the communication of the present
applicant. As far as the confessional statement of the co-
accused is concerned and the observation of the
Honourable Apex Court, which may be helpful to the
present applicant while considering his application under
Section 439 of the Code of Criminal Procedure. In view of
the observations of the Honourable Apex Court, there is
no reason for this Court to take a different view. In view of
the observation, the criminal bail application deserves to
be rejected and the same is rejected accordingly.
(URMILA JOSHI-PHALKE, J.)
*Divya
