Bombay High Court
Shameem Bano Gulam Kureshi vs Union Of India And Anr on 5 February, 2024
Author: Prithviraj K. Chavan
Bench: Prithviraj K. Chavan
2024:BHC-AS:5694 8-256-2022-BA==.doc
Uday S. Jagtap
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 256 OF 2022
Shameem Bano Gulam Kureshi .. Applicant
Vs.
Union of India & Anr. .. Respondents
.....
Mr. Taraq Sayed a/w Ashwini Achari, Alisha Parekh for the
applicant
Mr. A.A. Palkar, APP for the respondent State
Mr. Shreeram Shirsat, Special P.P. a/w Janvi Mate, Janveer Khan,
Karishma Rajesh and Shekhar Mane for the respondent - UOI,
NCB
.....
CORAM : PRITHVIRAJ K. CHAVAN, J.
RESERVED ON : 2nd FEBRUARY, 2024
PRONOUNCED ON : 5th FEBRUARY, 2024
P.C.
1. The applicant is one of the four accused, who seeks her
release on bail in connection with alleged offences punishable under
Sections 8(c) r/w 20(b)(ii)C, 27A and 29 of the Narcotics Drugs and
Psychotropic Substances Act, 1985 (NDPS Act).
2. The prosecution case in brief goes like this.
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3. Pursuant to a secrete information received by the Narcotics
Control Bureau (NCB) that two Indian nationals namely Aftab Ail
Hishamoddin Shaikh (Aftab), Sabir Ali Azhar Sayyed (Sabir) are
travelling from Hazarat Nizamuddin to LTT, Kurla, Mumbai by
Train No.02172 in Coach No.B9, seat nos. 51 and 57 along with
substantial quantity of Narcotics Drugs in their luggage trolley bag.
4. When the said train reached LTT, Kurla, Mumbai on 12 th
December 2020, the officials of the respondent - NCB accosted
Aftab and Sabir whose description matched with the information
received by it. The train arrived around 22:45 hours on Platform
No.2. Aftab and Sabir were accosted when they were about to
alight from B9 coach along with the four ladies and two children
with two trolley bags. It is alleged that accused - Aftab had a red
and maroon colour Italian Tourist trolley bag while accused - Sabir
had a brown colour Elegant company trolley bag.
5. During interrogation of those two persons, the raiding team
noticed four ladies and two children accompanying the two accused
namely Shameem Bano Gulam Qureshi, Nilofer Korabu, Yasmin
Iqbal Payak, S. Tahmeena Sabir Ali Sayyed, Sayyad Sidra and
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Sayyad Sidiya.
6. During search of a bag carried by accused - Aftab, the team
noticed dark coloured round shape substance purported to be
Charas weighing 3.095 kgs. Upon searching another bag, the team
noticed cylindrical shaped dark brown substance purported to be
Charas weighing 3.531 kgs. The contraband was seized under the
panchanama. All the accused were served with a summons under
Section 67 of the NDPS Act. Accused nos. 1 and 2 namely Aftab
and Sabir were placed under arrest. Statement of the applicant was
recorded and she was also placed under arrest.
7. After investigation, respondent filed a chargesheet in the
Special Court against all the four accused under Sections 8(c) r/w
20(b)(ii)C, 27A and 29 of the NDPS Act. The applicant preferred
an application for bail before the Sessions Court, Mumbai which
came to be rejected on 8th November 2021 and, therefore, now she
has approached this Court.
8. I heard Mr. Sayed, learned Counsel for the applicant as well
as Mr. Shirsat, learned Special Public Prosecutor for the respondent
at a considerable length.
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9. At the outset, Mr. Sayed would argue that the applicant being
a poor lady has been made a scapegoat by rest of the accused. She
is innocent and was unaware as to how she was lured to accompany
them to Hazarat Nizamuddin. She was paid petty amount of
Rs.5,000/-. He would argue that the information note of the NCB
does not indicate whether the applicant, in fact, is a co-traveller
with the accused since there is no proof in the form of train ticket
or any other material in the form of reservation chart indicating
that the applicant did travel with the co-accused.
10. The contraband was found from the possession of accused -
Aftab and Sabir and, therefore, there is no material to connect the
applicant with the alleged crime. The Counsel would also invite my
attention to the statement of one Sayyad Masur Hasan @ Firoz,
who had stated in his statement under Section 67 of the NDPS Act
that the amount of Rs.3 lac, which he had given to the applicant
were in fact toy currency notes. Mr. Sayed would argue that the
applicant was unaware of this fact also. As such, he submits that
since the contraband has not been recovered from the actual and
conscious possession of the applicant as well as the fact that the
applicant being an illiterate lady is unable to understand English
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language, she was totally ignorant of the entire proceedings
conducted by the respondent in English language.
11. It is contended that since the accused no.4 - Firoz has already
been released on bail by the Sessions Court who was arrested on the
basis of statement of the co-accused, the applicant also deserves to
be released on the ground of parity.
12. Mr. Shirsat, learned Special Public Prosecutor on the other
hand, invited my attention to the observations made by the trial
Court while rejecting the application for bail qua the applicant
where it has been observed that the applicant was travelling with
the main accused in the same train and in the same coach from
Delhi to Mumbai who alighted at LTT, Kurla, Mumbai together and
were intercepted by the respondent at the same point of time. Even
though nothing has been found in her possession, namely
commercial quantity of Charas, the same was found in the
possession of the main accused with whom the applicant was
travelling. Mr. Shirsat would argue that the applicant was in
constructive possession of the contraband and, therefore, she being
a part of the entire network, very well knew that the contraband
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was being transported from Delhi to Mumbai.
13. He placed reliance on a judgment of the Supreme Court in
the case of Mohan Lal Vs. State of Rajastan, (2015) 6 SCC 222. The
Hon'ble Supreme Court was dealing with an appeal by the accused
against his conviction for the offence under Section 18 of the NDPS
Act. The Supreme Court held that possession for the purpose of
Section 18 of the NDPS Act is basically connected to "actus of
physical control and custody". The term "possession" consists of
two elements. First, it refers to the corpus or the physical control
and the second, it refers to the animus or intent which has reference
to exercise of the said control. The Hon'ble Supreme Court has
surveyed several decisions on this aspect. However, considering the
material placed on record in the instant case, it would be difficult to
construe that the applicant had the animus or intent qua the
contraband.
14. Learned Special Public Prosecutor would further emphasize
on rigours of Section 37 of the NDPS Act. He has placed reliance
upon a few decisions of this Court which shall be referred to
hereinafter. While concluding, he vehemently urged to reject the
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application inter alia submitting that at the most the trial can be
expedited.
15. Law as regards a statement in the form of confession recorded
under Section 67 of the NDPS Act is inadmissible and the said issue
is no more res integra in view of the well known judgment of the
Supreme Court in case of Tofan Singh Vs. State of Tamil Nadu, AIR
(2020) SC 5592. It is held that even the statement of a co-accused
under Section 67 of the NDPS Act cannot form the basis for
rejecting an application for bail. Indubitably, the applicant in her
statement recorded under Section 67 of the NDPS Act stated in
Hindi that she had a talk with accused - Firoz on 7 th December
2020, who informed her to accompany accused - Aftab and Sabir to
Delhi in order to bring the contraband. She was paid Rs.5000/- by
Firoz who had already been released on bail by the trial Court. It
is a matter of record that what had been received by the applicant at
New Delhi is in the form of purported currency notes, which are
used by children (toy currency notes). Her statement under
Section 67 of the NDPS Act further indicates that bags containing
contraband - Charas was kept on seat no.57 by the accused - Sabir
and another bag was kept on seat no.51 by accused - Aftab.
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Admittedly, nothing came to be seized from the possession of the
applicant and, therefore, it cannot be said that she was in conscious
possession with animus, custody or dominion over the prohibited
substance which could only be proved during trial.
16. If six of them were travelling from Hazarat Nizamuddin to
LTT, Kurla, Mumbai how come there were only two reserved
tickets in coach no. B9 with seat nos. 51 and 57 ?
17. It creates a doubt about the authenticity of the raid conducted
by the respondent as to why the other ladies travelling with the
accused have neither been intercepted nor their statements were
recorded under Section 67 of the NDPS Act in order to find out the
truth. How come so many persons were found travelling only on
the basis of two tickets in Coach No.B9 Seat nos. 51 and 57 ? How
the applicant could travel without a valid ticket all the way from
Delhi to LTT, Kurla, Mumbai in a reserved coach ? It is not the
case of the prosecution that the applicant has antecedents to her
discredit.
18. The arrest report qua the applicant dated 13th December 2020
appears to be drafted in a mechanical way as it appears that the
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Zonal Director, Superintendent and Investigating Officers stated in
the said report "he was communicated his grounds of arrest to the
applicant" who is a female. Be that as it may.
19. It is not the case of the prosecution that the applicant is liable
for a punishment for consumption of any Narcotic drug or
psychotropic substance as provided in Section 27 of the NDPS Act.
Insofar as Section 27A is concerned, which indicates indulgence of
an accused in financing, directly or indirectly, any of the activities
specified in sub-clauses (i) to (v) of [clause (viiib) of section 2] or
harbours any person engaged in any of the aforementioned
activities, shall be punishable with rigorous imprisonment for a term
which shall not be less than ten years. What has been surfaced from
the record of the prosecution is that those were toy currency notes,
in the sense, those were meant for children's game and as such
prima facie the applicant does not appear to be involved in
financing either directly or indirectly any activities in respect of the
Narcotic drugs or psychotropic substances.
20. As already stated, since nothing has been found in the
possession of the applicant and merely because she was a co-
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traveller that too sans valid travelling tickets, would not ipso facto
mean that she abetted or had entered into any criminal conspiracy
with the prime accused. The observations made by a single Judge
of this Court case of Jitendra Jain Vs. NCB & Anr. (Bail Application
No.2682 of 2021, decided on 26 th July 2022) (Coram: Bharati
Dangre, J.), therefore, can be distinguished accordingly. In the
said case, cash amount in the form of Indian Currency, US Dollars,
Pounds and Dirhams were recovered under the panchanama. The
applicant in that case was found to have received money through
his girl friend in google account. There was tangible evidence
enclosed with the complaint as regards drug trafficking and
procuring, possessing and purchasing as well as consumption of
Charas. It, therefore, cannot be a ratio decidendi to be looked
into in view of peculiar facts of this case.
21. Insofar as the rigours of Section 37 of the NDPS Act are
concerned, certain restrictions have been placed on the powers of
this Court while granting bail to a person accused of having
committed an offence under the NDPS Act. The limitations on
granting of bail specified in clause (b) of sub-section (1), are, of
course in addition to the limitations under the Code of Criminal
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Procedure.
22. Admittedly, an opportunity has already been granted to the
Special Public Prosecutor to oppose the application moved by the
applicant. Insofar as satisfaction of this Court that there are
reasonable grounds for believing that she is not guilty of such
offence and that she is not likely to commit any offence while on
bail, as already discussed hereinabove, nothing had been found in
conscious possession of the applicant who appears to be a passenger
in the same coach without any valid ticket. Reluctance of the
respondent in not recording the statement of other women
accompanied with the main accused and the applicant though it is
stated that all were travelling together, would create a cloud of
suspicion. As such, prima facie, there are reasonable grounds for
believing that she is not guilty of such offence. As already stated,
what had been transpired from the record is that the money which
exchanged hands was nothing but toy currency notes.
23. The role of accused no.4 - Firoz is almost on the same
pedestal to that of the applicant who has been granted bail by the
trial Court. As already stated, it is needless to go into the aspect of
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the expression "reasonable grounds" used in clause (ii) of sub-
section (1) of Section 37 of the NDPS Act, which would necessarily
mean that there should be some credible, plausible grounds for the
Court to believe that the accused is not guilty of the alleged offence.
Of course, as already stated the 'reasonable grounds' herein are
more than prima facie grounds.
24. Mr. Shirsat has, therefore, placed reliance on a decision of the
Supreme Court in case of State of Kerala and Ors. Vs. Rajesh and
Ors. (2020) 12 SCC 122. The Supreme Court has carved out
scheme of Section 37 more particularly the expression "reasonable
grounds" in para 20 to 23 of the judgment, which is extracted
below :-
"20. The scheme of Section 37 reveals that the exercise of
power to grant bail is not only subject to the limitations
contained under Section 439 of the CrPC, but is also
subject to the limitation placed by Section 37 which
commences with non obstante clause. The operative part
of the said section is in the negative form prescribing the
enlargement of bail to any person accused of commission
of an offence under the Act, unless twin conditions are
satisfied. The first condition is that the prosecution must
be given an opportunity to oppose the application; and the
second, is that the Court must be satisfied that there are
reasonable grounds for believing that he is not guilty of
such offence. If either of these two conditions is not
satisfied, the ban for granting bail operates.
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21. The expression "reasonable grounds" means
something more than prima facie grounds. It
contemplates substantial probable causes for believing that
the accused is not guilty of the alleged offence. The
reasonable belief contemplated in the provision requires
existence of such facts and circumstances as are sufficient
in themselves to justify satisfaction that the accused is not
guilty of the alleged offence. In the case on hand, the High
Court seems to have completely overlooked the underlying
object of Section 37 that in addition to the limitations
provided under the Cr.PC, or any other law for the time
being in force, regulating the grant of bail, its liberal
approach in the matter of bail under the NDPS Act is
indeed uncalled for.
22. We may further like to observe that the learned
Single Judge has failed to record a finding mandated under
Section 37 of the NDPS Act which is a sine qua non for
granting bail to the accused under the NDPS Act.
23. The submission made by learned counsel for the
respondents that in Crime No. 14/2018, the bail has been
granted to the other accused persons(A1 to A4), and no
steps have been taken by the prosecution to challenge the
grant of post arrest bail to the other accused persons, is of
no consequence for the reason that the consideration
prevailed upon the Court to grant bail to the other accused
persons will not absolve the act of the accused
respondent(A5) from the rigour of Section 37 of the NDPS
Act."
25. Indeed, recording of finding mandated under Section 37 of
the NDPS Act is a sine qua non for granting bail to an accused
under the NDPS Act. The findings as recorded hereinabove qua the
applicant are not in the context of finding the applicant not guilty
of the offence or whether the applicant has in fact committed or not
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committed any offence under the NDPS Act but the entire exercise
is only for the purpose of considering as to whether the applicant
can be enlarged on bail or otherwise. In light of the aforesaid facts,
there are reasonable grounds for believing that the applicant is not
guilty of the offences with which she has been charged and is
unlikely to commit any offence while on bail.
26. The Hon'ble Supreme Court in the case of Narcotics Control
Bureau Vs. Mohit Agarwal (Criminal Appeal No.1001-1002 of
2022, decided on 19th July 2022) while cancelling the bail of the
applicant even dehors the confessional statement of the respondent
and the co-accused under Section 67 of the NDPS Act observed that
there was other material brought on record by the NCB which
ought to have dissuaded the High Court from exercising its
discretion in favour of the respondent accused by concluding that
there were reasonable grounds to justify that he was not guilty. In
case of Mohit Agarwal (supra) it seems that the High Court had
completely overlooked the fact that on the basis of a disclosure
statement made by the respondent himself huge quantity of
Narcotic drugs and injections were seized from the godown of the
co-accused - Pramod Jaipuria who was subsequently arrested by the
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Department. It is stated that the High Court has committed grave
error by not applying the terms and conditions imposed under
Section 37 of the NDPS Act and in view of the embargo placed in
Section 37 of the NDPS Act, the respondent ought not to have been
admitted to bail as it was a case of constructive / conscious
possession of the contraband, psychotropic substances as well as
active participation of the respondent in an organized gang that was
involved in smuggling of the drug. As already stated, the ratio laid
down in the Mohit Agarwal (surpa) can be distinguished in light of
the facts discussed hereinabove.
27. Admittedly, the applicant has been incarcerated for more than
3 years ever since her arrest on 13 th December 2020. The charge
has not yet been framed. There is no likelihood of the trial being
concluded within a reasonable period.
28. Dehors merits of the case and in view of various
pronouncements referred to hereinabove, I am persuaded to release
the applicant on bail albeit imposing certain conditions, which
would take care of the apprehension expressed by the learned
Special Public Prosecutor.
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29. Consequently, the following order is expedient :-
ORDER
(a) The application is allowed.
(b) The applicant be released on executing a P.R.
bond in the sum of Rs.30,000/- with one or two sureties
in the like amount to the satisfaction of the Special
Court in Special Case No. 652 of 2021 for the offence
punishable under Section 8(c) r/w 20(b)(ii)C, 27A and
29 of the NDPS Act.
(c) The applicant shall report the office of the NCB,
Mumbai on first Saturday of every month between
10.00 a.m. to 1.00 p.m. till charge is framed.
(d) After framing the charge, the applicant shall
attend each date in the trial Court scrupulously.
(e) The applicant shall not tamper with the evidence
or attempt to influence or contact any of the witnesses
or persons concerned with this case.
(f) The applicant shall furnish her residential address
and contact details forthwith to the respondent and the
Special Court. The applicant shall inform in case of
any change in her contact details or residential address
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to the respondent as well as the Special Court.
(g) In case of two consecutive defaults either in
attending the respondent or the trial Court or in case of
breach of any of the aforesaid conditions, the
prosecution shall be at liberty to seek cancellation of
her bail.
30. The application stand disposed of in the aforesaid
terms.
(PRITHVIRAJ K. CHAVAN, J.)
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