Bombay High Court
Sayed Sameer Hussain vs State Of Maharashtra And Anr on 25 September, 2025
2025:BHC-AS:40443
BA-5391-2024.doc
Ajit Pathrikar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 5391 OF 2024
Syed Sameer Hussain ...Applicant
Versus
State Of Maharashtra and Anr. ...Respondents
Mr. Hrishikesh Mundargi i/b Mr. Pravada Raut for the
Applicant.
Ms. Manisha R. Tidke, APP for the State-Respondent.
Mr. Saket R. Ketkar, SPP for Respondent No.2-DRI.
CORAM Dr. Neela Gokhale, J.
RESERVED ON: 23rd September 2025
PRONOUNCED ON: 25th September 2025
JUDGMENT:
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1. By way of this application, the Applicant seeks his
release on bail in connection with complaint No.
DRI/MZU/C/INT-49/2023 registered with the Directorate of
Revenue Intelligence, Mumbai Zonal Unit, Mumbai for
offences punishable under Section 21(c), 23(c), 27(A), 28, 29,
30, 35, 54 read with Section 8(c) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 ("NDPS Act").
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2. The case set up by the prosecution is as under:
i) On 3rd April 2023, acting on specific intelligence, one
Mr. Imran Ahmed Mohammed namely, the Accused No.1 was
intercepted at CSMI Airport. He arrived from Ethiopia.
Approximately, 1970 grams of cocaine was recovered from his
luggage. His statement under Section 67 of the NDPS Act was
recorded. In his said statement, he implicated the present
Applicant.
ii) The Accused No.1 met the present Applicant, while he
was working as a cab driver in a travel agency owned by the
Applicant's uncle. It is at the behest of the Applicant that the
Accused No.1 got involved in bringing contraband in India
from abroad. According to Accused No.1, the present
Applicant handled all the logistics of arranging flight tickets,
hotel bookings, payments and sources of collection of the
contraband. The Applicant gave detailed statements regarding
the involvement of the Applicant in the said racket. There
were other people involved in the entire web.
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iii) Based on the information given by the Accused No.1,
the Applicant was apprehended from Hotel R. K. Residency,
Vile Parle (E), CSMIA airport road on 4 th April 2023 at 13.45
hours. It is the case of the prosecution that the Applicant also
gave a confession. He, in turn, implicated an African national
namely, one Mr. Morris. According to him, he was working as
per the instructions of Mr. Morris.
iv) The Applicant revealed that he communicated with Mr.
Morris through WhatsApp calls and WhatsApp chats. Some
chats are deleted but the prosecution was able to recover
some of them. Sakina Begam, the wife of the Applicant also
gave a statement in which she admitted that Accused No.1
was working on the Applicant's instructions. The Applicant
was working under Mr. Morris. Mr. Morris has sent huge
amounts to the account of Sakina. Her phone and bank
account was used by her husband i.e. the Applicant to receive
messages from Mr. Morris and others involved as well, to
receive funds.
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v) On the basis of forensic records, WhatsApp chats,
statement of bank accounts and statements made by co-
accused, the Applicant herein was also charge-sheeted for the
offences as alleged.
3. The Applicant filed an application seeking bail before
the NDPS Special Judge and by order dated 7 th May 2024, the
Special Judge rejected his application. Hence, he has filed the
present application for the relief as prayed.
4. Mr. Hrishikesh Mundargi, learned Counsel appeared for
the Applicant and Mr. Saket Ketkar, learned SPP represented
the Respondent No.2-DRI.
5. Mr. Mundargi submitted that firstly, the entire
implication of the Applicant is based on the statements given
by Accused No.1 as well as the Applicant's wife Sakina. The
statement given by the Accused No.1 cannot be read in
evidence as it is a statement given to the police. He submitted
that there is no recovery of contraband from the Applicant
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and neither is there any money trail leading to any deposit in
his bank account. He further submitted that the Applicant was
arrested on 5th April 2023 and till date charges are not
framed. Thus, on the ground of long incarceration of the
Applicant, the present bail application must be allowed.
6. Mr. Ketkar has brought to my attention the averments
made in the affidavit-in-reply affirmed by one Mr. Kumar
Amrish, Deputy Director, DRI, Mumbai Zonal Unit, Mumbai.
The entire facts of the case are narrated in the affidavit. Mr.
Ketkar also calls to my attention certain WhatsApp chats of
the Applicant made with the Accused No.1 as well as Mr.
Morris. There are conversations with other persons in respect
of exchange of money for the contraband substance. He
further submits that the forensic examination of the mobile
phones is conducted under panchanama and the relevant
WhatsApp calls/logs clearly point to the involvement of the
Applicant. Mr. Ketkar has also relied on the statements of the
bank account of Sakina which shows receipt of huge amounts
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from said Mr. Morris. Mr. Ketkar also submits that the call logs
indicate as many as 117 calls between the Applicant and the
Accused No.1. He thus, strongly resists the bail application
and prays that it be rejected.
7. I have heard both the Counsel and perused the record
with their assistance.
8. It is settled law that Section 37 of the NDPS Act places
certain restrictions on the power of the Court while granting
bail to a person accused of having committed an offence
under the NDPS Act. The conditions imposed in Section 37(1)
is that the Public Prosecutor must be given an opportunity to
oppose the bail application and secondly, if such an
application is opposed, the Court must be satisfied that there
are reasonable grounds for believing that the Applicant is not
guilty of such an offence. Additionally, the Court must be
satisfied that the Accused person is unlikely to commit any
offence while on bail.
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9. The Apex Court in a series of decisions has summed up
the meaning of the expression "reasonable grounds". The
expression means credible, plausible and grounds for the
Court to believe that the Accused is not guilty of the alleged
offence. Such facts should exists that can persuade a Court
that the Applicant/Accused has not committed the said
offence. At the same time, at the stage of considering grant of
bail, it is not necessary for the Court to record a finding of
guilt of the Applicant/Accused. There is no requirement of
weighing the evidence available to arrive at any findings. All
that is required is existence of "reasonable grounds" to
indicate that the Applicant has not committed the offence.
10. In so far as the facts in the present case are concerned,
admittedly, the statements recorded under Section 67 of the
NDPS Act cannot be relied upon to demonstrate any guilt of
the Applicant. Therefore, these statements must be kept
aside. However, these statements are not the only material
available on record to indicate the involvement of the
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Applicant. The WhatsApp chats recovered by the Cyber
Forensic Laboratory from the mobile phones used by the
Applicant throw up evidence of his involvement in the
smuggling syndicate of the contraband substance.
11. There is material to suggest more than 117 calls of the
Applicant to the Accused No.1 and other unknown persons
including Mr. Morris. The transcripts of the WhatsApp
chats/voice notes are all related to the planning of their
operations and logistics including booking of flights, hotels,
tutoring other boys in respect of answering questions of
enforcement agencies, location of delivery of contraband
substance, etc. The Court also cannot lose sight of the fact
that as much as 1970 grams of cocaine was seized from the
custody of Accused No.1. The same is approximately 20 times
that of the prescribed commercial quantity of cocaine. The
bank account statement of Sakina also shows receipts of the
amounts from the African national called Mr. Morris. This
amount is withdrawn by the Applicant to meet expenses
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relating to the Accused No.1. Thus, dehors the statements
made by the co-accused under Section 67 of the NDPS Act
there is other circumstantial evidence which dissuades this
Court from exercising discretion in favour of the Applicant. It
cannot be concluded that there are reasonable grounds to
believe that the Applicant has not committed the offence.
12. Considering the magnitude of the operations and the
role of the Applicant, the length of incarceration which is
approximately two years, by itself cannot be the consideration
as a persuasive ground to grant bail to the Applicant. In view
of the aforesaid discussion, the rigors of the Section 37 of the
NDPS Act are not satisfied. This is not a fit case for grant of
bail.
13. Hence, the bail application is rejected.
14. It is made clear that the observations made herein are
prima facie and the Trial Court shall decide the case on its
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own merits, uninfluenced by the observations made in the
present order.
(Dr. Neela Gokhale, J)
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