Bombay High Court
Nizamuddin Ahmed Taja S/O Ahmad Taja vs The Union Of India And Anr on 12 January, 2024
Author: Prithviraj K. Chavan
Bench: Prithviraj K. Chavan
2024:BHC-AS:2962 1026-2022-BA=.doc
Uday S. Jagtap
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 1026 OF 2022
Nizamuddin Ahmed Taja S/o Ahmad Taja .. Applicant
Vs.
The Union of India & Anr. .. Respondents
.....
Mr. Niranjan Mundargi i/b Agastya Desai for the applicant
Mr. M.G. Patil, APP for the respondent - State
Mr. Shreeram Shirsat, Special Public Prosecutor a/w Ms. Tanvi Mate
a/w Mr. Nhishad Mokashi for respondent no.1
.....
CORAM : PRITHVIRAJ K. CHAVAN, J.
DATED : 12th JANUARY, 2024
P.C.
1. Applicant - Nizamuddin Ahmed Taja has been arrested by the
Narcotic Control Bureau on 15.06.2021 since he was found in
possession of commercial quantity of 12 kgs. of Charas which was
found being illegally trafficked in his Eeco Taxi bearing Registration
No. MH-01-CV-2808 along with another accused. The raid was
conducted by the respondent pursuant to a tip off which was
reduced into writing. The co-accused - Shabbir Usman Shaikh was
found accompanying the applicant in his car. The car was
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intercepted by the NCB around 14.30 hours near Arjun Ali Toll
Plaza, Padga, Tehsil- Bhiwandi, Dist. Thane.
2. Usual procedure of offering personal search by the members
of the raiding team as well as Section 50 of the NDPS Act has been
followed. The applicant refused to get his personal search effected
before the Gazetted Officer. The contraband was found in the back
side of the taxi in a sky-blue coloured bag containing 12 packets
with a brown tape. Upon being asked, the co-accused - Shabbir
Shaikh revealed that it was Charas which was being carried to
deliver someone in Mumbai. After investigation, a charge-sheet has
been filed in the Special Court. An application moved for release on
bail by the applicant came to be rejected by the Special Judge on
12.08.2021.
3. Mr. Mundargi, learned Counsel for the applicant took me
through the record by emphasizing that the applicant has been
falsely implicated in this case who is a poor taxi driver and was
unaware as to how the contraband has been carried by the co-
accused in his car. He further stated that there is non-compliance
of mandate of Section 52A of the NDPS Act. He also submits that
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the contraband alleged to have been recovered has been tampered
with by the prosecution. He further contends that rigours of
Section 37 of the NDPS Act would not be attracted in the given case
as there are reasonable grounds to believe that the applicant is not
guilty of the alleged offence.
4. Mr. Shirsat, learned Special Public Prosecutor while strongly
objecting the application seeking bail contends that the applicant
was found in conscious possession of the commercial quantity of
contraband along with the co-accused and, therefore, there would
be no question of compliance of Section 52A of the NDPS Act even
though Investigating Agency was diligent enough to make the
applicant aware of his right to be searched in the presence of
nearest Gazetted Officer or by the nearest Magistrate. Mr. Shirsat
has also invited my attention to the call detail records indicating
frequent conversation between the applicant and the co-accused as
well as the statement recorded under Section 67 of the NDPS Act.
He placed reliance on a judgment of the Hon'ble Supreme Court in
the case of Union of India, through Narcotics Control Bureau
Luknow Vs. Mohd. Nawaj Khan, (2021) 10 SCC 100 as well as in
the case of Union of India Vs. Ajay Kumar Singh @ Pappu, (arising
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out of SLP (Cri.) No.2351 of 2023) and Narcotics Control Bureau
Vs. Mohit Aggarwal 2022 SCC Online SC 891.
5. Mr. Mundargi pointed that the information note dated
15.06.2021 indicates that the respondent had received an
information about trafficking of a commercial quantity of
contraband in one Eeco Taxi being Registration No. MH-01-CV-
2808, which was intercepted between 14.00 hours to 15.30 hours
pursuant to which the said Eeco Taxi was intercepted and searched.
It revealed that the first accused who was sitting in the back seat of
the car was in possession of commercial quantity of contraband.
Mr. Mundargi would argue that applicant being an innocent driver
was not expected to know kinds of goods were possession of the
passenger sitting in the rear seat. He also raised a question as to
how the date of panchanama as well as the date of summon to the
applicant under Section 67 of the NDPS Act could be issued
simultaneous on the same day. It is pertinent to note that though
panchanama of interception and seizure of the contraband was
conducted on 15.06.2021 and even Notice under Section 67 of the
NDPS Act was issued on the same day, it does not ipso facto mean
that there is some reason to suspect the genuineness of the
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investigation at this stage.
6. Mr. Mundargi would argue that there is no due compliance of
Section 50 of the NDPS Act, in the sense, the notice reveals that the
applicant had signed beneath a sentence which reads "I do not need
any Gazetted Officer or Magistrate and any NCB Officer can take
their search". Counsel would say that if it is in respect of the
applicant then it ought to have been written by the applicant
himself and it should not have been typed by the Investigating
Officer of the respondent. At this stage, I do not find any substance
in the said submission, for, the applicant is said to be literate who
had put his signature in English after having understood the
purpose of the Notice issued under Section 50 of the NDPS Act.
7. Next, Mr. Mundargi made a futile attempt to point out that
the Certificate under Section 52A(2) of the NDPS Act issued by the
Metropolitan Magistrate suffers from irregularities, in the sense,
after drawing the samples for being sent to the Forensic Science
Laboratory, they were not duly sealed by the concerned
Metropolitan Magistrate. In short, the Counsel submits that there
is no due compliance of Section 52A(3) of the NDPS Act.
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8. Mr. Shirsat, on the other hand, pointed out that there has
been a due compliance which is evident from the Test Report dated
01.10.2021 indicating that the samples which were received by the
Chemical Examiner were found to be with a Facsimile / Description
of the seal/s on the sample packet. It is not the requirement of law
that the sample should contain Facsimile seal of the Metropolitan
Magistrate. In fact, Certificate under Section 52A(2) bears rubber
seal of the Metropolitan Magistrate.
9. The applicant appears to have feigned innocence as regards
trafficking of illicit narcotic substance which is evident from his
statement recorded by the respondent wherein he categorically
stated that he knew the first accused from one year and he had been
accompanying the first accused for trafficking Charas in the past
also. It is needless to go into the minutes details of his statement
which reveals his complicity with the co-accused in trafficking the
contraband in the past also. Suffice it to say that the applicant had
stated before the NCB Officer that on the earlier occasion, accused
- Shabbir Shaikh had paid him Rs.4,000/- for trafficking 5 kgs.
of Charas from Sanpada to Mumbai, which was received by the
applicant from a person who had approached him on a bike. He
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further states that some times he consumes Cannabis.
10. There are call detail records indicating continuous
conversation between the first accused and the applicant on the date
of interception of the car and seizure of the contraband.
11. In case of Mohit Aggarwal (surpa), on the basis of secrete
information received by the officer of the NCB on 09.01.2020, one
parcel had been booked by a person from Agra named Gaurav
Kumar Aggarwal which was, to be delivered to Manoj Kumar at
Ludhiana , Punjab. It was stored at the godown of a courier
company at village Samalkha, Kapasehra, New Delhi. When the
NCB team conducted a raid and searched, suspected parcel was
identified and opened in the presence of two independent witnesses
50,000 Tramadol tablets weighing 20 kgs. were recovered. As the
tablets contained in the suspected parcel had been mis-declared and
were without any valid bill, seizure proceedings were initiated by
the Officials of the NCB. The Supreme Court in para 6, 7, 15, 17,
18 and 19 observed thus :-
"6. In his statement recorded under Section 67 of the
NDPS Act, the respondent herein disclosed that he had
been illegally selling and purchasing the said tablets and
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capsules from Promod Jaipuria. The respondent was taken
into custody on 11 th January, 2020. He moved two
applications for grant of bail before the learned Special
Judge, NDPS. Both the said applications were vehemently
opposed by the appellant-NCB and were rejected by the
Special Judge, NDPS. Aggrieved by the order dated 21 st
July, 2020, whereby his second bail application was
dismissed, the respondent filed a petition under Section
439 of the Code of Criminal Procedure, 1973 3 for grant
of bail which has been allowed by the impugned order
passed by the learned Single Judge of the High Court.
7. Arguing for the appellant-NCB, Mr. Jayant K. Sud,
learned Additional Solicitor General, submitted that while
passing the impugned order granting bail to the
respondent, the High Court has erred in observing that no
incriminating material was recovered by the NCB officials
at his residence. He stated that the High Court has
completely overlooked the fact that it was on the basis of
the disclosures made by the respondent himself that huge
quantities of narcotic drugs and injections were seized
from the godown of the co-accused, Promod Jaipuria who
was subsequently arrested by the Department; that the
High Court has committed a grave error by not applying
the terms and conditions imposed under Section 37 of the
NDPS Act; that the offence committed by the respondent
falls under the category of recovery of commercial
quantity of narcotic drugs and in the light of the embargo
placed in Section 37 of the NDPS Act, the respondent
ought not to have been admitted to bail and that this is a
case of constructive/conscious possession of the
contraband substances as the respondent was an active
participant in a organized gang that was involved in
smuggling of drugs. Lastly, it was stated that there was
sufficient circumstantial evidence available against the
respondent which would disentitle him for being admitted
to bail.
15. We may clarify that at the stage of examining an
application for bail in the context of the Section 37 of the
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Act, the Court is not required to record a finding that the
accused person is not guilty. The Court is also not
expected to weigh the evidence for arriving at a finding as
to whether the accused has committed an offence under
the NDPS Act or not. The entire exercise that the Court is
expected to undertake at this stage is for the limited
purpose of releasing him on bail. Thus, the focus is on the
availability of reasonable grounds for believing that the
accused is not guilty of the offences that he has been
charged with and he is unlikely to commit an offence
under the Act while on bail.
17. Even dehors the confessional statement of the
respondent and the other co-accused recorded under
Section 67 of the NDPS Act, which were subsequently
retracted by them, the other circumstantial evidence
brought on record by the appellant-NCB ought to have
dissuaded the High Court from exercising its discretion in
favour of the respondent and concluding that there were
reasonable grounds to justify that he was not guilty of such
an offence under the NDPS Act. We are not persuaded by
the submission made by learned counsel for the
respondent and the observation made in the impugned
order that since nothing was found from the possession of
the respondent, he is not guilty of the offence for which he
has been charged. Such an assumption would be premature
at this stage.
18. In our opinion the narrow parameters of bail
available under Section 37 of the Act, have not been
satisfied in the facts of the instant case. At this stage, it is
not safe to conclude that the respondent has successfully
demonstrated that there are reasonable grounds to believe
that he is not guilty of the offence alleged against him, for
him to have been admitted to bail. The length of the
period of his custody or the fact that the charge-sheet has
been filed and the trial has commenced are by themselves
not considerations that can be treated as persuasive
grounds for granting relief to the respondent under
Section 37 of the NDPS Act.
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19. As a result of the aforesaid discussion, the present
appeals are allowed and the impugned order releasing the
respondent on post-arrest bail, is quashed and set aside.
The bail bonds of the respondent are cancelled and he is
directed to be taken into custody forthwith."
12. In the case of Ajay Kumar Singh (supra), the facts are more or
less identical. In the said case, pursuant to an information received
by the Directorate of Revenue Intelligence (DRI) on 11.01.2021
that a huge quantity of narcotics "Ganja" is likely to be transported
in a truck from Bhadrachalam (Andhra Pradesh) to Jaunpur (Uttar
Pradesh) via Varanasi. When it was apprehended, the person
driving the truck introduced himself as Om Prakash Yadav, resident
of Uttar Pradesh and the other person in the truck introduced
himself as Amit Yadav. Initially, both of them denied transportation
of Ganja and informed that truck is loaded with cattle feed.
Consequently, it was revealed that they were transporting 1005
packets of varying size containing Ganja. It was found that both
the accused knew the respondent - accused and that they had
connived with the him to transport illicit Ganja. They were in
direct contact with the respondent - accused all through on his
mobile number, which has been unfurled from the complaint / FIR
and the statement of the aforesaid three accused recorded under
Section 67 of the NDPS Act. The Supreme Court observed that in
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light of the above, it does not seem to be good and sufficient reason
for granting bail to the respondent accused. Para 15 to 17 of the
said judgment read thus :-
"15. For the sake of convenience Section 37(1) is
reproduced hereinbelow:-
"37. Offences to be cognizable and non-bailable.-
(1) Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 of 1974)-
(a) every offence punishable under this Act shall be
cognizable;
(b) no person accused of an offence punishable for
2[offences under section 19 or section 24 or
section 27A and also for offences involving
commercial quantity] shall be released on bail or
on his own bond unless-
(i) the Public Prosecutor has been given an
opportunity to oppose the application for such
release, and
(ii) where the Public Prosecutor opposes the
application, the court is satisfied that there are
reasonable grounds for believing that he is not
guilty of such offence and that he is not likely to
commit any offence while on bail."
16. In view of the above provisions, it is implicit that no
person accused of an offence involving trade in
commercial quantity of narcotics is liable to be released
on bail unless the court is satisfied that there are
reasonable grounds for believing that he is not guilty of
such an offence and that he is not likely to commit any
offence while on bail.
17. The quantity of "ganja" recovered is admittedly of
commercial quantity. The High Court has not recorded
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any finding that the respondent-accused is not prima
facie guilty of the offence alleged and that he is not likely
to commit the same offence when enlarged on bail rather
his antecedents are indicative that he is a regular
offender. In the absence of recording of such satisfaction
by the court, we are of the opinion that the High Court
manifestly erred in enlarging the respondent-accused on
bail."
13. In case of Mohd. Nawaz Khan (supra) while setting aside the
order of the High Court granting bail to the appellant in the alleged
offences under Sections 8, 21, 27-A and 29 of the NDPS Act a huge
contraband of morphine weighing about 3.300 kg. has been
recovered from the vehicle. It is observed that while granting bail,
the High Court lost site of the following crucial circumstances (i)
huge contraband of morphine weighing 3.300 kg. were recovered
from the vehicle (ii) respondent was admittedly travelling in the
vehicle all the way from Dimapur in Nagaland to Rampur in Uttar
Pradesh and (iii) the complaint tabulates the call data records of
the cell phones used by the accused. The accused persons were
found to have been in touch with each other and a flow-chart has
been set out in the complaint. Para 30 of the judgment reads thus:-
"30. The following circumstances are crucial to assessing
whether the High Court has correctly evaluated the
application for bail, having regard to the provisions of
Section 37:
(i) The respondent was travelling in the vehicle
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all the way from Dimapur in Nagaland to Rampur
in Uttar Pradesh with the co-accused.
(ii) The complainant notes that the CDR analysis
of the mobile number used by the respondent
indicates that the respondent was in regular touch
with the other accused persons who were known
to him;
(iii) The quantity of contraband found in the
vehicle is of a commercial quantity; and
(iv) The contraband was concealed in the vehicle
in which the respondent was travelling with the co-
accused."
14. Having taken into account the dicta of Hon'ble Supreme
Court in the aforesaid judgments and the material on record, the
applicant is not entitled to be released on bail.
15. Consequently, the application is rejected.
(PRITHVIRAJ K. CHAVAN, J.)
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