Saddam Hussain Aslam Sarang v. State Of Maharashtra

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION BAIL APPLICATION NO.2655 OF 2024 Saddam Hussain Aslam Sarang ...Applicant

Versus

The State of Maharashtra

...Respondent

Mr. Akshay Bankapur, for the Applicant.

Ms. Rajeshree V. Newton, APP, for the Respondent−State.

CORAM:

MADHAV J. JAMDAR, J.

DATED:

27 AUGUST 2024 PC:- 1.

Heard Mr. Bankapur, learned Counsel for the Applicant and Ms. Newton, learned APP for the Respondent-State. 2.

The Applicant i.e. Accused No.6 has preferred this regular Bail Application under Section 439 of the Code of Criminal Procedure, 1973. The relevant details are as follows:-

1. C.R. No.

2. Date of registration of F.I.R.

05/10/2023

3. Name of Police Station Indiranagar Police Station, District - Nashik

4. Section/s invoked 8(c), 20(b), 22(c) & 29 of the N.D.P.S. Act, 1985

5. Date of incident 05/10/2023

6. Date of arrest 04/03/2024

7. Date of filing of Charge-sheet 30/03/2024 3.

This Bail Application has been opposed by the Respondent - State of Maharashtra by filing an Affidavit dated 30th July 2024 of Hemant K. Nagare, Assistant Police Inspector, NDPS Cell, Crime Branch, Nashik City. The prosecution case is set out in Paragraph No.3 of said Affidavit dated 30th July 2024. The said Paragraph No.3 reads as under:- "3.

I say that the prosecution case in brief is as under :- (a) That the orig. complainant namely Assistant Sub Inspector Ranjan Punjaji Bendale, attached to NDPS Cell, Nashik City lodged FIR inter alia stating therein that on 05/10/2023 ASI Ranjan Bendale got the information about the possession and selling of contraband by the accused No. 1 and 2. Thereafter Ranjan Bendale, Assistant Police Sub Inspector, attached to N.D.P.S. Cell, Crime Branch, Nashik City reduced information in writing and produced the same before the senior police inspector Mr. Nalawade. It is the case of the Orig. Complainant/Informant that Mr. Nalawade sought the permission from Asst. Commissioner of Police for the raid. It is the case of the Orig. Complainant/Informant that thereafter, Asstt.

Commissioner of Police, Crime Branch, Nashik City gave the permission for the raid and accordingly Panchas have been called. It is the case of the Orig. Complainant/Informant that thereafter pre-trap panchanama have been prepared in the office of NDPS cell Nashik City.

(b) It is the case of the Orig. Complainant/Informant that accordingly raid was conducted on accused No. 1 and 2 and during the course of raid, the search was carried out which resulted in the recovery of 54.5 gram of Mephedrone from the accused Nasrin @ Choti Bhabi Imtiyaz Shaikh and 1.288 K.G. of Ganja from the coaccused Wasim Rafiq Shaikh. As the aforesaid accused persons were found in possession of the aforesaid contraband, necessary due procedure of law was followed in accordance with law. (c) On the basis of the complaint lodged by the Orig. Complainant, offence vide CR No. 268/2023, u/secs. 8(c), 22(b), 22(c) and 29 of N.D.P.S. Act, was registered with Indira Nagar Police Station, Nashik City on 05.10.2023 against (1) Wasim Rafiq Shaikh and (2) Nasrin @ Choti Bhabhi Imtiyaz Shaikh and investigation was commenced and it was assigned to me as per direction of superior officers."

4.

There are total 12 Accused persons. Accused Nos.1 to 5 were arrested and Accused Nos.6 to 12 are absconding. The present Applicant is Accused No.6. Mr. Bankapur, learned Counsel for the Applicant submitted that the Accused No.4 - Salman Shakeel Ahmed Falke has been granted bail by this Court by Order dated 19th July 2024 passed in Bail Application No.2489 of 2024. He further submitted that the Accused No.5 - Shabbir alias Aiba Abdul Aziz Menon has been granted bail by this Court by Order dated 20th August 2024 passed in Bail Application No.2879 of 2024. He therefore states that the Applicant is entitled to be released on bail as the Applicant is claiming parity on the basis of these Orders.

5.

As far as the role of the present Applicant is concerned, the same is set out in Paragraph No.14 of said Affidavit dated 30th July 2024 of Hemant K. Nagare, Assistant Police Inspector, NDPS Cell, Crime Branch, Nashik City. The said Paragraph No.14 reads as under:- "14. I say that during the course of investigation, the investigating agency obtained Call Details Record (C.D.R.) of the present Applicant/Accused hereinabove. I further say that it revealed from the said CDR Report that there were frequent and repetitive calls between the present Applicant/Accused and Orig. accused No. 4 i.e. Salman Shakil Ahmad Falke. I further say that it also revealed from the aforesaid C.D.R. that the Orig. accused No. 4 namely Salman Shakil Ahmed Falke from his mobile No. 7738487400 had 309 calls with present applicant / accused on his mobile No.

8793137158 of Original Accused. I say that even the present Applicant/Accused from his mobile No.8793137158 had 278 calls with Orig. accused No. 2 i.e. Nasreen alias Chotibhabi Imtiyaz Shaikh on her mobile No.8830670551 and 207 calls with accused No. 3 i.e. Imtiyaz Umar Shaikh on his mobile No. 8446219392. Hereto annexed and marked as Exhibit F is the copy of the C.D.R. Report." (Emphasis added) 6.

Mr. Bankapur, learned Counsel for the Applicant submitted that the role alleged against the present Applicant is that the

present Applicant has acted as mediator. He submitted that as per the prosecution case, there are direct links amongst co-Accused persons for the purpose of selling contraband material. The contraband items seized is 54.5 grams of Mephedrone (MD) along with 1 kg and 288 gms. of Ganja. Certainly, the contraband item Mephedrone (MD) of 54.5 grams is of commercial quantity. 7.

It is the submission of Mr. Bankapur, learned Counsel appearing for the Applicant that the Applicant was arrested on 4th March 2024. The Charge-sheet was filed on 30th March 2024. He submitted that as far as the present Applicant is concerned, the only material against him is that he called Accused No.4 and Accused Nos.2 and 3 from his cell phone on number of occasions. He submitted that except these call details there is no material whatsoever against the present Applicant. He relied on a decision of this Court in Saddam Hussain Qureshi vs. Union of India.1 and more particularly on Paragraph Nos.11 and 12 of the same. He also relied on the decision of Gujarat High Court in Yash Jayeshbhai Champaklal Shah vs. State of Gujarat2 and emphasized Paragraph No.5 of the same. He also relied on the decision of the Supreme 2024 SCC OnLine Bom 1096 2022 SCC OnLine Guj 271

Court in Bharat Chaudhary vs. Union of India3 and more particularly on Paragraph Nos.13 and 14 thereof. He submitted that there are no other antecedents.

8.

On the other hand, Ms. Newton, learned APP for the Respondent-State strongly opposed the Bail Application. She pointed out various contentions raised in Affidavit-in-Reply dated 30th July 2024 of Hemant K. Nagare, Assistant Police Inspector, NDPS Cell, Crime Branch, Nashik City. She more particularly relied on Paragraph No.14 of the said Affidavit-in-Reply. She submitted that the material on record clearly shows that the present Applicant was in constant contact with Accused Nos.2, 3 and 4. She therefore, submitted that the involvement of the Applicant in the alleged offence is made out. After taking instructions, she submitted that the Applicant has no criminal antecedents. 9.

Before considering the rival contentions, as the offence is under Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS Act"), it is necessary to set out Section 37 of the NDPS Act, wherein conditions to be mandatorily complied before releasing an (2021) 20 SCC 50

Accused on bail, are set out. Section 37 of the NDPS Act reads as under:

"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 offences under section 19 or section 24 or section 27-A 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.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail."

(Emphasis added)

Thus, as per Section 37 of the NDPS Act, following requirements are mandatorily to be complied with before releasing an Accused on bail:

(i) The Public Prosecutor is to be given an opportunity to oppose the application seeking bail; (ii) Where the Public Prosecutor opposes the application:- (a) The court is required to record satisfication that there are reasonable grounds for believing that the Applicant is not guilty of such offence;

(b) The Court is requried to record satisfaction that the Applicant is not likely to commit any offence while on bail.

10.

In the present case, Ms. Newton, learned APP has filed Affidavit-in-Reply of Hemant K. Nagare, Assistant Police Inspector, NDPS Cell, Crime Branch, Nashik City, and has opposed the Bail Application by raising several contentions. Therefore, the first requirement is complied with.

11.

Thus, what is required to be considered is that whether this Court is satisfied that there are reasonable grounds for believing

that the Applicant is not guilty of such offence and that he is not likely to commit any offence while on bail.

12.

In the present case, the only material against the present Applicant is that he was in constant telephonic contact with coAccused namely Accused Nos.2, 3 and 4. The relevant Paragraph No.14 is already set out herein above.

13.

As the only material on record against the Applicant is that the Applicant was in constant contact with Accused Nos.2, 3, and

4. Mr. Bankapur, learned Counsel appearing for the Applicant has relied on Paragraph No.5 of the decision in Yash Shah (supra), which reads as under:

"5. Having heard learned advocates for the appearing parties, it emerges on record that the applicant is not found in possession of any contraband article. Over and above that, the call data records may reveal that in an around the time of incident, he was in contact with the co-accused who were found in possession of contraband. Since there is no recording of conversation in between the accused, mere contacts with the co accused who were found in possession cannot be treated to be a corroborative material in absence of substantive material found against the accused. However, screenshot of one of the whatsapp chat in between the co-accused shown to the Court, there is hardly

anything which connects the applicant with the present offence or even asserting that he ordered for the same which were to be delivered by the accused found in possession of contraband. In absence of any other material, which is still to be retrieved from the devices of the mobile phone and information thereon which is still awaited, as considered by the Supreme Court in the case of Bharat Chaudhary (Supra) said material cannot be considered to be a sufficient material to establish any live link with the co-accused who were found in the possession of contraband."

(Emphasis added) Thus, in the case before Gujarat High Court the call data records revealed that the Accused was in contact with the co-accused who were found in possession of contraband in and around the time of the incident. In the said decision of Gujarat High Court, it has been held that, since there is no recording of conversation between the Accused, mere telephonic contact with the co-Accused, who were found in possession of contrabands cannot be treated as corroborative material in absence of substantive material found against the Accused. The material on record shows that the present Applicant had frequently contacted Accused Nos.2, 3 and 4 on cell phone and except that material there is no other material against the present Applicant.

14.

Mr. Bankapur, learned Counsel appearing for the Applicant has also relied on Paragraph Nos.13 and 14 in Bharat Chaudhary (supra). The said Paragraph Nos.13 and 14 read as under: "13. In the absence of any clarity so far on the quantitative analysis of the samples, the prosecution cannot be heard to state at this preliminary stage that the petitioners have been found to be in possession of commercial quantity of psychotropic substances as contemplated under the NDPS Act. Further, a large number of the tablets that have been seized by DRI admittedly contain herbs/medicines meant to enhance male potency and they do not attract the provisions of the NDPS Act. Most importantly, none of the tablets were seized by the prosecution during the course of the search conducted, either at the office or at the residence of A-4 at Jaipur, on 16-3-2020.

Reliance on printouts of WhatsApp messages downloaded from the mobile phone and devices seized from the office premises of A-4 cannot be treated at this stage as sufficient material to establish a live link between him and A-1 to A-3, when even as per the prosecution, scientific reports in respect of the said devices is still awaited.

14. In the absence of any psychotropic substance found in the conscious possession of A-4, we are of the opinion that mere reliance on the statement made by A-1 to A-3 under Section 67 of the NDPS Act is too tenuous a ground to sustain the impugned order dated 15-7-2021 [Union of India v. Bharat Chaudhary, 2021 SCC OnLine Mad 6554] . This is all the more so when such a reliance runs contrary to the ruling in Tofan Singh [Tofan Singh v. State of T.N., (2021) 4 SCC 1 : (2021) 2 SCC (Cri) 246] . The impugned order [Union of India v. Bharat

Chaudhary, 2021 SCC OnLine Mad 6554] qua A-4 is, accordingly, quashed and set aside and the order dated 2-11-2020 passed by the learned Special Judge, EC & NDPS cases, is restored. As for Raja Chandrasekharan (A-1), since the charge-sheet has already been filed and by now the said accused has remained in custody for over a period of two years, it is deemed appropriate to release him on bail, subject to the satisfaction of the trial court." (Emphasis added) The Supreme Court has also observed that only sending some WhatsApp message which have been later downloaded from the cellular phone and devices seized from the Accused cannot be treated as sufficient material to establish a live link between the Accused persons.

15.

In this particular case, admittedly the contraband was found in possession of Accused Nos.1 and 2. As per the prosecution case, the said contraband material was purchased by the Accused Nos.1 and 2 from Accused No.3- Imtiaz Umar Shaikh and Accused No.3 had purchased the same from Accused No.4 and the Accused No.4 has purchased the same from Accused No.6 i.e. present Applicant. Except the material in the form of Call Details Record (C.D.R.) showing that the present Applicant i.e. Accused No.6 had called on

number of occasions Accused Nos.2, 3 and 4, there is no other material whatsoever against the present Applicant. Thus, there are reasonable grounds to believe that the Applicant was not involved in the said offence.

16.

It is an admitted position that there are no other antecedents against the Applicant. Therefore, there is no material on record to hold that the Applicant is likely to commit any offence while on bail.

17.

Accordingly, the Applicant can be enlarged on bail by imposing stringent conditions.

18.

In view thereof, the following Order:-

O R D E R

(a) The Applicant - Saddam Hussain Aslam Sarang be released on bail in connection with C.R. No.268 of 2023 registered with the Indiranagar Police Station, District - Nashik on his furnishing P.R. Bond of Rs.1,00,000/- with one or two local solvent sureties in the like amount.

(b) On being released on bail, the Applicant shall furnish his cell phone number and residential address to the Investigating Officer and shall keep the same updated, in case of any change thereto.

(c) The Applicant shall report to the Indiranagar Police Station, District - Nashik once every week i.e. on every Sunday between 11:00 a.m. and 1:00 p.m. till the conclusion of the trial.

(d) The Applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade such a person from disclosing the facts to the Court or to any Police personnel.

(e) The Applicant shall not tamper with the prosecution evidence and shall not contact or influence the Complainant or any witness in any manner.

(f) The Applicant shall attend the trial regularly. The Applicant shall co-operate with the Trial Court and shall not seek unnecessary adjournments thereat.

(g) The Applicant shall surrender his passport, if any, to the Investigating Officer.

19.

The Bail Application is disposed of accordingly. 20.

It is clarified that the Trial Court shall decide the case on its merits, uninfluenced by the prima facie observations made in this Order.

[MADHAV J. JAMDAR, J.]