Calcutta High Court (Appellete Side)
Md. Washim vs Unknown on 9 August, 2021
09.08.2021 CRM 3068 of 2021
Court No.28 (Via Video Conference)
Item No.15
(REJECTED)
In Re:- An application for bail under section 439 of the Code of
Criminal Procedure filed on 26.03.2021 in connection with NCB
Ab Crime No. 51/NCB/KOL/2018 dated 21.10.2018 under Sections
8(c)/20(b)(ii)(C)/29 of the NDPS Act (NDPS Case No. 35 of 2018);
And
In the matter of : Md. Washim.
...Petitioner.
Mr. Karan Dudhwewala.
...For the Petitioner
Mr. Y. J. Dastoor, Ld. ASG,
Mr. Phiroze Edulji,
Mr. Abhisek Addhya.
... For the Union of India
The Advocate-on-record of the petitioner undertakes to affirm
and stamp the petition/application as per the Rules within four
weeks from date. Subject to such undertaking, the application is
taken up for hearing.
The petitioner has filed the instant application for bail under
Section 439 of the Code of Criminal Procedure in connection with
NCB Crime No. 51/NCB/KOL/2018 dated 21.10.2018 under
Sections 8(c)/20(b)(ii)(C)/29 of the Narcotic Drugs and Psychotropic
Substances Act.
The petitioner is renewing the prayer for bail in connection
with the aforementioned case. This Bench rejected the earlier
application for bail being CRM 3485 of 2020 on 15th May 2020 even
after noticing the fact that no recovery of contraband was made from
the petitioner, as he was implicated on the basis of the statement of
the co-accused.
The instant case pertains to an transportation of the
contraband to various countries. The holder of consignment was
apprehended and during investigation it transpires that all such
contraband was taken from the petitioner. The call details would also
reveal some linkage with the principal accused.
Since 15th May 2020, when the last application was rejected by
this Court, we do not find any changed circumstances warranting
different decision to be taken.
The Co-ordinate Bench judgments have been cited before us in
case of Abdul Malique & Ors., passed in CRM 8145 of 2020 (decided
on 21st December 2020) and Bablu Sk. @ Saddam Hossain, passed in
CRM 8480 of 2020 (decided on 21st October 2020) and the other
judgments touching upon the same issue in support of the
contention that the disclosure of the name by a co-accused is not
admissible in law and the call details report also does not constitute
admissible evidence.
We have gone through the judgments. There is no difficulty in
accepting the proposition that the statement of the co-accused made
before the police is not reliable piece of evidence unless a nexus is
established with cogent materials. It is a degree of evidence and the
quality of materials produced before the Court at the time of trial to
adjudicate whether the petitioner is a guilty or not.
So far as the recording of call details and other telephonic
conversation is concerned, there is a specific observation made by
the Co-ordinate Bench regarding raising suspicion. However, a
distinction is sought to be made that it may not justify conspiracy.
Once a prima facie link is established, the onus lies on the accused
to rebut the presumption under the Narcotic Drugs and Psychotropic
Substances Act.
All such points, which are raised by the petitioner, are the
matter of trial and if raised, the Court will decide the same but
because of the incriminating materials having prima facie found
against the petitioner and there being no changed circumstances
since the rejection of the earlier application for bail filed by the
petitioner, we do not find that it is a fit case where the petitioner
deserves different treatment than what had already been extended to
him on an earlier occasion.
The application for bail being CRM 3068 of 2021 is rejected.
(Harish Tandon, J)
(Bibek Chaudhuri,J.)
