Mohammed Zaman Hidaytullah Khan v. The Union Of India And ORS

Amberkar IN IN THE THE HIGH HIGH COURT COURT OF OF JUDICATURE JUDICATURE AT AT BOMBAY BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION BAIL APPLICATION NO. 4100 OF 2024 Mohammed Zaman Hidaytullah Khan .. Applicant

Versus

The Union of India & Anr.

.. Respondents ....................

 Mr. Taraq Sayed a/w Ms. Ashwini Achari, Mr. Devashish Dhanjode, Mr. Anish Pereira and Mr. Mobin Solkar for Applicant  Mr. Shriram Shirsast, Special Counsel a/w Ms. Karishma Rajesh, Mr. Nikhil Daga & Mr. Shekhar Mane for Respondents  Ms. Savita M. Yadav, APP for State ...................

CORAM : MILIND N. JADHAV, J.

DATE : FEBRUARY 21, 2025 P. C.

:

1.

Heard Mr. Sayed, learned Advocate for Applicant; Mr. Shirsat, learned Special Counsel for Respondents and Ms. Yadav, learned APP for State.

2.

Applicant is arraigned as accused No. 10 and he is in incarceration in an NDPS offence since 05.07.2021. There are several other accused persons and prosecution case is that they all in connivance with each other dealt with the alleged contraband which has been confiscated and seized.

3.

Mr. Sayed at the outset would draw my attention to two orders passed by this Court i.e. order dated 01.11.2023 passed in Bail Application No. 4257/2011 (Coram : G.A. Sanap, J.) in which this

Court had expedited the trial and directed the same to be completed within a period of six months and further order dated 08.05.2024 (Coram : Prithviraj K. Chavan, J.) wherein on the request made by learned Additional Sessions Judge, Thane seeking one year extension of time to dispose of the trial, the time was extended by one year. Though that time would come to an end in the month of May 2025, Mr. Sayed has persuaded the Court to hear the present Bail Application considering the abysmal progress of the trial wherein only three witnesses of the prosecution are examined out of 33 possible witnesses which they desire to examine till date. In addition thereto, he would place on record the order dated 19.11.2024 passed in Bail Application No. 978 of 2022 (Coram : Manish Pitale, J.) in respect of accused No. 9 in the present crime and would submit that this Court has granted bail to him on the basis of his role and indictment by prosecution in the present case.

4.

Mr. Shirsat would submit that indictment of accused in the present case is based on WhatsApp chats / calls and CDRs of the present Applicant with other co-accused which would show the complicity of the Applicant in the present crime. Mr. Sayed would immediately counter this allegation of the prosecution against the Applicant by stating that the alleged WhatsApp chats / calls between the Applicant and other co-accused pertain to the period prior to one

year before the date of the present crime in question and therefore that cannot be used as a basis to oppose the Bail Application. That apart he would submit that WhatsApp chats / calls and CDRs without adequate and appropriate corroboration to prima facie prove complicity of the Applicant in the present crime in question cannot be relied upon as per se they cannot be held as admissible and it would be a matter of trial to be proved by the prosecution in trial as held by the Supreme Court in the following cases:- (i) State v. Pallulabid Ahmad Arimutta1;

(ii) Bharat Chaudhary v. Union of India2;

(iii) Mohd. Hussain Ahmed Shaikh @ Babool Bhai v. State of Maharashtra3.

5.

Mr. Shirsat would submit that he be permitted to place on record appropriate citations and decisions of the Supreme Court to counter the submissions made by Mr. Sayed as also the above decisions with respect to considering complicity of accused persons on the basis of WhatsApp chats / calls and CDRs. At his request time of one week to produce the relevant citations is granted. 6.

This matter shall be treated "Part-Heard" and heard on 5th March, 2025.

by RAVINDRA MOHAN AMBERKAR Date: 2025.02.21 19:53:02 +0530 RAVINDRA MOHAN AMBERKAR Amberkar [ MILIND N. JADHAV, J. ] SLP (Cri) No. 3242/2022 dated 10.01.2022 (2021) 20 SCC 50 Bail Application No. 2000 of 2023 decided on 09.05.2024