Gujarat High Court
Fotik Najrul Ali vs Directorate Of Revenue ... on 5 March, 2021
Bench: A.Y. Kogje
R/CR.MA/17372/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 17372 of 2020
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FOTIK NAJRUL ALI
Versus
DIRECTORATE OF REVENUE INTELLIGENCE
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Appearance:
BHARATKUMAR A DESAI(8513) for the Applicant(s) No. 1
MR. KSHITIJ AMIN, ADVOCATE for MR DEVANG VYAS, ASG (2794) for the
Respondent(s) No. 1
MR.H.K.PATEL, APP, (2) for the Respondent(s) No. 2
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CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 05/03/2021
ORAL ORDER
(1) The present application is filed under Section
439 of the Code of Criminal Procedure, 1973, for
regular bail in connection with the offence
registered as DRI.F.No.DRI/AZU/SRU/A/NPDS-01/2019
with Directorate of Revenue Intelligence, Regional
Unit, Surat under Sections 8(C) and 9(vi) read with
Sections 22, 28 and 29 of the Narcotic Drug and
Psychotropic Substance Act, 1985.
(2) Learned advocate for the applicant submits that the
applicant is innocent and falsely roped in. It is
submitted that the applicant has been arraigned as an
accused only because the applicant knew the main
accused Shri Sunil Kaushik as the present applicant
is working in the factory owned by father of the said
Shri Sunil Kaushik and only in that capacity, the
applicant had accompanied the said Shri Sunil
Kaushik. It is submitted that it cannot be said that
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the applicant was in conscious possession as the bag
containing psychotropic substance Mephedrone and the
said Sunil Kaushik was also traveling with the
applicant. It is submitted that even from the FIR as
well as the Panchnama drawn, majority of the
allegations are against the said Shri Sunil Kaushik
and therefore, the applicant cannot be held to be
an accused only on the ground of the applicant
accompanied the said accused.
(3) Learned advocate submits that in the prosecution
also there is violation of Section 50 of the NDPS Act
(for short "the Act") as the statutory consent under
the provisions of NDPS Act has been jointly taken and
Investigating Agency is bound to receive individual
consent.
(4) Learned advocate for the applicant has
thereafter, relied upon decisions in the case of Arif
Khan Alias Agha Khan v/s. State of Uttarakhand,
reported in (2018) 18 SCC 380 and in the case of
State of Rajasthan v/s. Parmanand and another,
reported in (2014) 5 SCC 345 to indicate that where
there are more than one accused persons, consent of
each accused person as contemplated under Section 50
of the Act is required to be taken.
(5) It is lastly submitted that the applicant is a
young man and is in custody since 26.10.2019.
(6) As against this, learned Additional Solicitor
General Shri Devang Vyas for respondent No.1
R/CR.MA/17372/2020 ORDER
submitted that the Investigating Agency has
sufficient evidence to implicate the applicant and
charge-sheet him for the same. The travel record of
the applicant including the CCTV footages indicate
that the applicant and said Shri Sunil Kaushik were
traveling together and both were in possession of the
bag consisting psychotropic substance. Learned ASG
has drawn attention of this Court and relied upon the
affidavit filed by the Deputy Director of Revenue
Intelligence. It is also submitted that the stand of
the applicant regarding non-compliance of Section 50
of the Act is untenable as on record there is
sufficient evidence to indicate that the written
consent of both Shri Sunil Kaushik and the applicant
has been taken. Attention is drawn to written
communication dated 25.10.2019, wherein for
compliance of Section 50 of the Act, written consent
and the signature individually of the applicant and
another communication of the same date, wherein
written consent of the said Shri Sunil Kaushik is
taken.
(7) Heard learned advocate for the parties and
perused the documents place on record. The offence
registered as DRI F.No.DRI/AZU/SRU/A/NDPS-01/2019
with DRI, Surat under Sections 8(c) and 9(vi) read
Sections 22, 28 and 29 of the Act for which before
the Principal Sessions Judge Criminal NDPS Case No.
22 of 2020 came to be rejected. It is the case that
in a railway coach, the applicant was apprehended
alongwith co-accused, both of them found in
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possession of Mephedrone in two bags respectively
containing 10 Kgs. and 7.694 Kgs. of Mephedrone. The
commercial quantity of the Mephedrone is prescribed
as 50 Grams, in view of this, provisions of Section
37 of Act would be attracted. From the case papers
especially, the Panchnama executed, description of
the process is quite vivid and substantiated with
evidences like travel ticket, photographs captured of
both accused at New Delhi Railway Station carrying
the respective bags before boarding the train and the
Call Detail Records internally between the accused
persons. It is recorded in the panchnama that the
DRI, Ahmedabad Zonal Unit along with two
independent panchas reached Vadodara Railway Station
on 25-10-2019 at around 02:00 Hrs. and contacted Shri
Balkrishna Malinda, PSI, RPF, Vadodara (Shift in-
charge) and briefed him about their operation. Shri
Balkrishna Malında contacted Shri Jagannath S. Devre,
PASI, RPF, who was on patrolling duty in the
aforesaid Rajdhanı Train. After arrival of the train
at Vadodara Railway Station at around 03:15 hrs,,
Shri Balkrishna Malinda introduced Shri Jagannath S.
Devre, PASI, RPF, who was on patrolling duty of the
Rajdhani Train and requested to assist the DRI
officers in their operation.
(7.1) Thereafter, on boarding the above referred
Rajdhani Train in coach no. A-5 and after reaching
the berth numbers of 25 to 30, it was found that two
berths i.e. berth No. 28 & 30 were lying vacant and
04 berths i.e. 25, 26, 27 & 29 were occupied by the
R/CR.MA/17372/2020 ORDER
passengers. At around 04:00 hrs, the passenger at
berth no. 29 was awakened up by the officers and
asked his name and requested to show his railway
ticket. The passenger at berth no. 29, informed his
name as Shri Sunil Kaushik and further informed that
another person named Shri Fotik Ali was also
travelling with him, who was presently at berth no.
26 of the same coach i.e. A-5. The passenger at berth
no. 26 also woke up and on being asked by the
officers, he informed his name as "Fotik Ali".
(7.2) On being asked by officers about their
profession/business, Shri Sunil Kaushik informed that
he started his own business in the name of M/s Mayur
Enterprises in the year 2016 engaged in
manufacturing, electroplating and chrome plating of
Steel items. Shri Fotik Ali informed that earlier he
was working with Shri Sunil Kaushik and now he is
working in a steel factory in Ashok Vihar Industrial
Area, Delhi.
(7.3) Thereafter, the officers vide letter dated 25-
10-2019 informed that they intend to take personal
search of Shri Sunil Kaushik & Shri Fotik Ali and
also informed his right to be searched in presence of
the Magistrate or a Gazetted officer and that Shri
Rakesh Rajani, Shri B.S, Rajput, being Sr.
Intelligence Officers of DRI are Gazetted officers.
Shri Sunil Kaushik & Shri Fotik Ali, gave their
written consent to be searched in the presence of
Gazetted Officers. Before commencing personal search,
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the DRI officers offered their personal search to
both Shri Sunil Kaushik & Shri Fotik Ali which was
declined by both of them. Thereafter, Shri Rakesh
Rajani & Shri B.S.Rajput carried personal search of
Shri Sunil Kaushik and Shri Fotik Ali and recovered
wallet from both of them.
(7.4) On personal search of Shri Sunil Kaushik &
checking the wallet of Shri Sunil Kaushik, the
officers found (a) Xerox copy of Aadhar card of Shri
Sunil Kumar bearing No. 533219300 4494; (b) Debit
Card of Punjab National Bank bearing No.
6070936043596359; (c) 5 Passport size Coloured
photographs of Shri Sunil Kaushik (d) Indian currency
in various denomination amounting to total
Rs.40,065/-. Similarly, On personal search of Shri
Fotik Ali & checking the wallet of Shri Fotik Ali,
the officers found (a) Election Commission (EPIC
Card) of Shri Nazrul bearing No. WB/05/043/402174;
(b) Election Commission (EPIC Card) of Shri Fotik Ali
bearing No. NTF1755669; (c) Aadhar card of Shri Fotik
Ali bearing No. 429526398231; (d) 2 Nos. of Delhi
Metro Smart Card bearing Nos. 81355810 dated 05/2018
and 85509204 dated 08/2019; (e) Debit Card of
Allahabad Bank bearing No. 5085362612003906; (f)
Xerox copy of PAN card of Shri Fotik Ali bearing No.
BTNPA1O31J; (g) One colour photo of Shri Fotik Ali;
(h) SBI debit card bearing number 4591150009521410 in
name of Fotik Ali; (i) Counter slip of deposit slip
of Punjab National Bank in the account of Shri
Gajanand Sharma (A/C N0.55160659154) (j) Brown colour
R/CR.MA/17372/2020 ORDER
wallet belonging to Shri Fotik Ali & (h) Corporation
Bank pass book in the name of Fotik Ali (A/c. No.
5201012504434979 branch -Guru Angad Public School,
Ashok Vihar, Delhi).
(7.5) Thereafter, the officers asked Shri Sunil
Kaushik about his belongings, to which he informed
that it was lying under his berth no. 29 and the
officers noticed that two backpacks and two pair of
shoes were lying under the berth no. 29, except these
nothing was present there. The officers also asked
Shri Fotik Ali about his baggage and he informed that
his baggage was lying under berth no. 29.
(7.6) Thereafter, other two passengers at berth no.
25 & 27 were also awaken up by the officers and on
being asked by the officers, they informed their name
as Shri Eklavya Bhardwaj at berth no. 25 and Shri
Shankar Pawar at berth no. 27. Further, on being
asked by the officers about their belongings, they
showed their belongings and informed that the two
backpacks found under the berth number 29 did not
belong to them.
(7.7) Thereafter, the officers requested Shri Sunil
Kaushik to pick his bags up, which he did and gave it
to the officers. The officers opened the black colour
backpack having emblem "hp" with five zippers having
handle (clip) engraved with "HMM" and found that it
contains the items (a) Blue coloured tiffin box; (b)
White vivo charger; (c) 2 white coloured ear phones
of Samsung make; (d) 1 blue Trouser; (e) 1 black
R/CR.MA/17372/2020 ORDER
shirt with white checks; (f) 1 grey trouser with belt
of brand "Seven Dots": (g) 1 night pant (hosiery)
'New' having brand label "Abercrobie & Fitch; (h) 2
undergarments (1 bunion & brief) and (i) Black
colourned watch of brand "fastrack".
(7.8) Thereafter, one of the officers called Shri
Hitesh, SIO, DRI, Surat and informed about the
suspected materials packed in two packets wrapped in
transparent plastic/polythene were found from the
luggage of the said two persons and further informed
they were bringing the said two persons along with
their belongings to Surat. Shri Hitesh, SIO, DRI,
Surat informed that he along with other officers were
already present at Surat Railway Station and also
informed that Shri Soham Lakhani, IO, DRI, Surat had
already called Shri P.C.Joshi, Scientific Officer,
I/c. Chemistry, Mobile Van from his mobile number and
requested him for the forensic test of the aforesaid
materials/goods and to give his finding as to whether
the said substance were NJPDS or otherwise.
Meanwhile, the train reached Surat Railway station at
around 04:55 AM of 25.10.2019 and the officers
alongwith panchas and Shri Sunil Kaushik and Fotik
Ali de-boarded at Surat Railway Station.
(7.9) Shri P.C.Joshi in presence of the panchas and
the officers took samples from both of the above
mentioned yellow coloured polythene bags marked as
"A" & "B" and tested the said substance with the
testing materials/kit available with him. Shri P.C.
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Joshi submitted his report dated 25-10-2019 stating
that upon preliminary testing, prima facie, the off
white coloured powdery material found to be positive
for General Screening Drug Identification Pouch Test
and therefore, on preliminary basis, off White
coloured powdery substance found in both packets
suspected to be containing Narcotic substance and
advised the officers for sending the sample to DFS
Gandhinagar for precise opinion. The panchas and Shri
Sunil Kaushik& Shri Fotik Ali perused the report and
in token of having seen, read and agreed with the
same, the panchas and the officer put their dated
signature on the report dated 25-10-2019 submitted by
Shri P.C.Joshi, Scientific Officer, I/c. Chemistry,
Mobile Van, Surat, However, Shri Sunil Kaushik and
Shri Fotik Ali refused to sign on the report dated
25-10-2019 submitted by Shri P.C,Joshi without
assigning any reasons.
(7.10) Thereafter, some of the DRI officers went to
the office of Collector, Surat to request the
Collector, Surat to depute executive magistrate for
preparing inventory, takıng photographs of the seized
goods and drawing of the representative samples.
Accordingly, the said officers of DRI along with one
person arrived the DRI Office, Vesu, Surat and they
introduced the said person as Executive Magistrate
Shri B.A.Prajapati, Executive Magistrate. Thereafter,
in presence of the panchas, Executive Magistrate Shri
B.A.Prajapati and Shri Sunil Kaushik and Shri Fotik
Ali, the officers again weighed the yellow polythene
R/CR.MA/17372/2020 ORDER
bag marked as A & B and the weighment of the same
comes out as under:-
Sr. Yellow colourned Gross Weight Tare Weight (In Net
No. polythene bag marked as (In Kgs) Kgs) Weight
(In Kgs)
1. A 3.759 2*0.023=0.046 3.713
2. B 4.004 0.023 3.981
Total Weight 7.759 0.069 7.694
(7.11) Thereafter, the officers took the yellow
coloured polythene. bag marked as "A" and in presence
of the panchas, Executive Magistrate Shri
B.A.Prajapati and Shri Sunil Kaushik and Shri Fotik
Ali drew three representative each and marked the
said samples of 25 grams representative samples as A-
1, A-2 and A-3. The officers then placed the said
yellow coloured polythene bag marked as "A" and
representative samples marked as A-1, A-2 and A-3 in
separate green envelopes and sealed all the four
envelopes with DRI lac seal no. 5 and pasted the
paper slip containing the details. The panchas,
Executive Magistrate Shri B.A.Prajapati and the
officer put their dated signature on the paper slip,
but Shri Sunil Kaushik and Shri Fotik Ali refused to
sign on the said paper slip without assigning any
reason. Similarly, the officers took the yellow
coloured polythene bag marked as °B" and in presence
of the panchas, Executive Magistrate Shri
B.A.Prajapati and Shri Sunil Kaushik and Shri Fotik
Ali drew three representative samples of 25 grams
each and marked the representative samples as B-1, B-
2 and B-3. The officers then placed the said yellow
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coloured polythene bag marked as "B' and
representative samples marked as B1, B2 and B3 in
separate green envelopes and seal all the four
envelops with DRI lac seal no.5 and pasted the paper
slip containing the details. The panchas, Executive
Magistrate, Shri B.A.Prajpati and the officer put
their dated signature on the paper slip but Shri
Sunil Kaushik and Shri Fortik Ali refused to sign on
the said paper slip without assigning any reason.
(8) With regards to the submissions of learned
advocate for the applicant regarding compliance of
Section 50 of the Act, the Court has taken into
consideration written communication dated 25.10.2019
which is signed by the applicant recording no
objection to personal search being taken by the
Gazetted Officer. Prima-facie, the written
communication with the signature of the applicant on
the same date being explained in writing and orally
is compliance of Section 50 of the Act. Therefore, at
this stage, there is nothing on record to conclude or
substantiate the contention of the applicant that the
individually both the accused persons were not given
option as provided for under Section 50 of the Act
and hence, ratio of judgment in the case of Parmanand
(Supra) would not be applicable in the facts of the
present case.
(9) The reliance placed upon by learned advocate for
the applicant in the case of Vijaysinh Chandubhai
Jadeja v/s. State of Gujarat, reported in (2011) 1
R/CR.MA/17372/2020 ORDER
SCC 609 and Arifkhan (Supra) are on the line that
non-compliance of mandatory provision under Section
50 of the Act is fatal to the prosecution case. Over
and above what is observed in the preceding paras, in
the facts of the present case, it is also pertinent
to observe that decision of the Apex Court is at the
stage after the conviction when an opportunity was
available to the prosecution to lay down the evidence
of strict compliance of Section 50 of the Act and
upon appreciation of the evidence, the Court came to
the conclusion with regards to the sufficient
compliance of mandatory requirement under Section 50
of the Act.
(10) In case of Vijaysinh Chandubhai Jadeja (Supra),
while considering the Right of the accused persons
under Section 50 of the Act, the Court has referred
to the concept of "substantial compliance" to strict
compliance of provisions of Section 50 of the Act and
the concept of substantial compliance is not
applicable in so far Section 50 of the Act is
concerned. However, in the facts of the present case,
prima-facie, Section 50 of the Act complied with,
however, it will still be a defence that can be
raised and burden of the prosecution at the time of
trial to lead evidence to establish compliance of
Section 50 of the Act which again will be in the
realm of appreciation of evidence which is
unwarranted at the stage of bail.
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(11) The Court has also taken into consideration
Section 37 of the Act especially the requirement of
the applicant to satisfy the Court that there are
reasonable grounds to believe that the applicant is
not guilty of such offence. There being nothing on
the record of the case including the pleadings and
oral submission in this regard, the Court may not
presume that the applicant's involvement in the
offence is not found on the evidence as available.
(12) The Court has perused the impugned order and the
concerned Sessions Court has given cogent and
convincing reasons while rejecting the bail
application.
(13) In view of the aforesaid reasonings, present
application is hereby dismissed.
(A.Y. KOGJE, J)
SIDDHARTH
