[Cites 6, Cited by 0]
Bombay High Court
Sudeshan Sadanandan Kurup vs The Union Of India And Anr on 8 April, 2026
2026:BHC-AS:16682 901-BA-3264-2025
Navnath Waghmare (P.A)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 3264 OF 2025
Sudeshan Sadanandan Kurup ...Applicant
Versus
The Union Of India And Anr. ...Respondents
Mr. Taraq Sayed, Anish Perira, Ashwinii Acharii and Aryan Kotwal
for the Applicant.
Mr. Hitendra J. Dedia APP for the Respondent-State.
Ms.Kshitija Wadakar a/w Khushi Patharia for Respondent No.1
Mr. Vicky, PSI, I.O. NCB, MZU.
CORAM: R. M. JOSHI, J.
RESERVED ON 02nd APRIL, 2026
PC:- PRONOUNCED ON 08th APRIL, 2026
1. Applicant seeks bail in connection with CR No. 17 of
2024 registered with Narcotics Control Bureau, Mumbai Zonal
Unit, Mumbai for the offence punishable under Section 8(c),
r/w 22(c), 28 and 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short "NDPS Act").
2. In short, it is the case of the prosecution that specific
information was received in respect of one person Shahnawaz
Mohammad Shahijada Shaikh carrying 5Kgs. (MD) in a travel
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bus from Hyderabad to Mumbai. On the basis of said
information, after compliance of Provisions of Section 42 of
the Act, a trap was laid for Shahnawaz. He was apprehended.
After compliance of provisions of Section 50 of the Act,he was
searched and he was found carrying contraband of about 5
Kgs. He came to be arrested and his statement was recorded
under Section 67 of the Act. After interrogating him,
involvement of the present applicant was revealed. The
statement of witness-Rekha was recorded confirming the fact
that mobile phones seized from the present applicant though
were not in his name, but he was using the same. There is
further evidence collected in form of emails exchanged
between applicant and accused no.3 and Whats-App Calls,
CDRs etc. It was also revealed during the investigation that
previously similar crime was registered against the applicant
of trafficking of contraband Cocaine. After completion of the
investigation, chargesheet came to be filed.
3. Learned counsel for the applicant submits that though
alleged information was received in respect of Mephedrone
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being carried out by accused no.1, in fact, some other
contraband was seized at his instance. In this regard,
reference is made to the C.A. Report which indicates that the
allegedly seized contraband was found from the accused no.1
is Clephedrone. It is his submission that thus doubt is created
with regard to information received, so also subsequent
recovery at the instance of the co-accused. It is his further
submitted that in so far as the present applicant is concerned,
except for the alleged statement of co-accused, there is
absolutely no evidence that connects him with the crime. In
this regard he argued that statement of the accused under
Section 67 is not admissible evidence and the same cannot be
relied upon during trial nor even at this stage. He further
argued that on alleged recovery mobile phones from the
applicant they were not sealed. Hence, any data/information
retrieved from the said mobile phone cannot become
admissible in evidence. It is his further submission that there
is a previous case registered against the applicant, however,
he is enlarged on bail therein essentially on these grounds
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applicant seeks bail. Learned Counsel for the applicant further
submits that co-accused no.3 who was said to be in contact
with the applicant is enlarged on Anticipatory Bail by this
Court order dated 07.01.2026 passed in Bail application No.
3598 of 2024 and which shows that emails exchanged
between them is not incriminating evidence.
4. In support of these submissions, he placed reliance of
the following judgment/Orders:
1) Armaan Kohli Vs. Union of India, Criminal Bail Application
No. 1248 of 2022.;
2) Kuruvilla Omen Cherian Vs. State of Maharashtra, Criminal
Bail application No. 4775 of 2024;
3) Ranjan Shaam Mawar Vs. State of Maharashtra, Criminal
Bail Application No. 3880 of 2021;
4) Union of India Vs. Vigin K. Varghese, 2025 SCC OnLine
SC 2440.
5. Learned APP, opposed the application that in this case
apart from data/information in the mobile phone, there is
statement of witness-Rekha which connects applicant in the
crime in question. It is further argued that since the applicant
has committed the present offence while on bail in connection
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with similar offence registered against him earlier, it cannot
be said that the applicant is not likely to commit crime if he is
enlarged on bail. According to him, embargo of Section 37
would apply to the instant case.
6. Prima-facie, perusal of the record indicates that
pursuant to the specific information received, trap was laid in
which accused no.1 was apprehended and from his possession
contraband of about 5 Kgs. was seized. C.A. report indicates
that the said seized contraband is Clephedrone. Merely
because information received with regard to the Mephedrone
and it turns out to be different contraband, it cannot be said
that any benefit thereof can be extended to the accused
persons at this stage. Thus, this is a case of seizure of
commercial quantity of contraband from the co-accused. For
application of Section 37 of the Act, actual seizure /recovery
of contraband from any particular accused is not necessary.
This Court has to see whether the contraband seized in a
particular case is of commercial quantity and present
applicant could be connected there to in order to apply
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provisions of Section 37 of the Act and in facts of the case, it
has application.
7. Prosecution relies upon the panchnama indicating
seizure of mobile phones from the present applicant. The said
panchnama indicates that on seizure of mobile phones, they
were sealed. Apart from this there is statement of witness-
Rekha, who specifically states about these being used by the
applicant. Thus, there is evidence to show the incriminating
recovery from the applicant. Moreover, the seizure of mobile
phones and sealing thereof immediately rules out possibly of
tampering with the same.
8. It is pertinent to note that apart from the aforestated
evidence, there is evidence in the form of email exchanged
between applicant and co-accused no.3. Though, it is sought
to be argued that the CDR's by themselves will not become a
ground for connecting applicant with the crime and in this
regard reference is made to the orders/judgments cited supra,
there is the material different in the facts of those cases and
the present case. In those cases except statement of co-
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accused or applicant under Section 67 of the Act, which is in
admissible in trial, there was no other evidence to conect
accused/applicant therein with crime. Record indicates that
there is other evidence to connect applicant with crime in the
form of statement of witness and other material. In the
present case, only evidence which makes present case
materially different than the cases cited supra.
9. Apart from this, what is more relevant is that the
present crime has been committed by the applicant, while he
was on bail in connection with the offence registered against
him under the NDPS Act. It seems that in the earlier case only
for the reason that the contraband was of intermediate
quantity, bail came to be granted to the applicant. In light of
these facts this Court has no reason to believe that the
applicant would not commit any similar offence in case he is
enlarged on bail.
10. At this stage, it would be relevant to take note of
Section 37 of the Act, which requires twin conditions to be
satisfied with in order to grant bail to the accused in the case
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of seizure of contraband of commercial quantity. Here in this
case indisputably the contraband seized at the instance of
accused no.1 is of commercial quantity. In order to enable the
court to grant bail in such offence the Court must have a
reason to believe that the accused is not guilty of the offence
charged and would not commit similar offence, if he is
enlarged on bail. Apart from the fact, that there is prima-facie
material on record on the basis of which the Court cannot
record such belief of applicant being not guilty of charged.
Secondly it also cannot be said that he would not commit
similar offence, if he is released on bail, Since, while on bail in
similar offence, present crime is committed. Both conditions
are essential before grant of bail and in absence of
applicability of even any one of them, Court cannot exercise
its power of granting bail. Hence, applicant has failed to make
out any case for grant of bail.
11. Application, therefore, stands dismissed.
(R. M. JOSHI, J.)
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