Bombay High Court
Ibrahim Badusha, Presently In Judicial … vs Union Of India Thr. The Inspector … on 14 August, 2025
2025:BHC-GOA:1506
2025:BHC-GOA:1506
CRMAB-53-2025
Suchitra
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPLICATION (BAIL) NO.53 OF 2025
IBRAHIM BADUSHA
S/o Hokimsha, Age: 26 years,
R/o near Lake Short Hospital,
Pallipparambu House, Nettoor,
Kerala - 682040, presently
Lodged in Judicial custody,
Modern Central Jail, Colvale, Goa. ... Applicant.
Versus
UNION OF INDIA, (through the
Inspector Narcotic Control Bureau,
(NCB Goa), Goa Zonal Unit, Goa. ... Respondent.
Ms Sana Raees Khan along with Mr Kautuk Raikar and Mr
Digaj Bene and Ms Neha Balani, Advocates for the Applicant.
Mr. Somnath Karpe, Central Government Standing Counsel
along with Adv. Ms Samiksha Vaigankar and Adv. Mr Anand
Shirodkar.
CORAM: VALMIKI MENEZES, J.
Reserved on : 10th June, 2025
Pronounced on : 14th August, 2025
P.C:
1. Registry to waive objections and register the matter.
2. This is an Application for bail filed by the Applicant under
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Section 483 of the Bharatiya Nagarik Suraksha Sanhita, seeking bail
in Crime No. 06/2024 registered with the NCB Goa Zonal Unit on
19.08.2024 for alleged offences punishable under Section 8(c) read
with Sections 20(b)(ii)(B), 27A and 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as the
“NDPS Act“).
CONTENTS OF THE COMPLAINT AND THE CASE OF
THE PROSECUTION
3. (A) It is the case of the prosecution that on 19.08.2024, based on
information received from the Railway Police Force regarding the
interception of one Tharik K. T. at Thivim Railway Station, who
allegedly admitted to carrying Charas/Hashish in his bag, a
complaint was lodged on the same day, i.e., 19.08.2024. Pursuant to
this, an FIR was registered on the same date, naming Tharik K. T.
(Accused No. 1), Ibrahim Badusha (Accused No. 2/Applicant),
Dheeraj Mathew (Accused No. 3), and Om Prakash (Accused No.
4) as the accused persons. The Applicant was arrested at 20:40 hours
on 19.08.2024. Accused No. 1 was arrested on 19.08.2023 at 13:00
hours, while the Applicant was arrested on the same day at 20:40
hours. Accused No. 3 was placed under arrest on 28.10.2024 at
21:00 hours, and Accused No. 4 was arrested on 16.01.2025 at 22:00
hours.
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(B) The complaint alleges that the Applicant and Accused No. 3,
Dheeraj Mathew, were involved in the financing of illicit trafficking
of Charas by transferring funds to Accused No. 1, Tharik K. T., for
the purchase of the seized contraband.
(C) According to the prosecution, the Applicant has violated the
provisions of Section 8(c) and committed offences punishable under
Sections 20(b)(ii)(B), 27, 27A, and 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985, by participating in the inter-
state procurement of 883.68 grams of Charas and becoming party to
a criminal conspiracy with Accused No. 1. The Applicant is thus
alleged to be involved in the inter-state transportation of 883.68
grams of Charas, and to have conspired with the co-accused. As
such, the rigors of Section 37 of the NDPS Act, 1985 are attracted.
(D) The complaint refers to a summary of Call Detail Record
(CDR) analysis concerning the accused persons, which outlines the
communication between them. It is noted that, according to the CDR
analysis, the Applicant appears to have contacted Accused No. 1 on
two occasions, once on 16.08.2024 and again on 19.08.2024. In
turn, Accused No. 1 also appears to have contacted the Applicant on
19.08.2024. Additionally, Accused No. 3 is shown to have contacted
the Applicant twice, on 17.07.2024 and 22.07.2024. The summary
further indicates that the Applicant contacted Accused No. 4/Om
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Prakash on two occasions, namely on 14.08.2024 and 16.08.2024.
The Call Data Record annexed with the Reply filed by the
respondent indicates that, on 16.08.2024, Accused No. 1 contacted
Accused No. 4 two times and Accused No. 4 appears to have
contacted Accused No. 1 twice on the same date. The location from
which such calls were made is shown to be Manikaran, Kullu,
Himachal Pradesh. The prosecution relies on these CDR records to
support its case.
(E) Furthermore, the complaint refers to a summary of bank
transactions between the accused persons. As per the records, the
Applicant is shown to have transferred amounts of Rs. 1,500/-, Rs.
500/-, and Rs. 49,999/- on 13.08.2024, 14.08.2024, and 15.08.2024,
respectively, from his account in Federal Bank to the account of
Accused No. 1 in Bank of Baroda. Additionally, transactions of Rs.
49,999/-, Rs. 2,500/-, Rs. 4,500/-, and Rs. 2,000/- were made on
15.08.2024, 16.08.2024, and 17.08.2024. A transaction of Rs.
49,999/- was made by the Applicant on 15.08.2024 from his account
in Federal Bank to Accused No. 1’s account in Indian Bank.
(F) The prosecution alleges that the applicant has received a total
of Rs.85,000/- from Accused No. 3/Dheeraj through two
transactions on 12.08.2024 into his Federal Bank account from
Dheeraj’s ICICI Bank account, and an additional sum of Rs.90,000/-
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from Dheeraj’s account in Bank of Baroda into the Applicant’s
Federal Bank account on the same date. The prosecution relies on
the bank account statements of the accused persons to establish the
money trail between the accused nos.3 to accused no.2 and from
accused no.2 to accused no.1 to prima facie demonstrate their
involvement in drug peddling.
4. Pursuant to his arrest on 19.08.2024, the Applicant filed Bail
Application No. 163/2024 before the Sessions Court, Mapusa on
29.08.2024, which came to be dismissed vide an Order dated
20.09.2024 on the ground that the investigation was at the
preliminary stage at that point and that the material brought on
record suffices to show prima facie involvement of the Applicant in
procuring the contraband. Subsequently, the Applicant approached
this Court seeking bail by filing an Application, CRMAB/998/2024,
on 25.11.2024, but the same was dismissed as the said Application
was withdrawn by the Applicant with a liberty to file a fresh when
cause arises, vide order dated 20.12.2024.
5. On 03.03.2025, the Applicant filed another bail application
before the Sessions Court, Merces, citing change of circumstances
on account of the Chargesheet being filed, which was rejected by an
Order dated 29.03.2025, observing that the material that formed a
part of the Chargesheet was accorded due consideration by the
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Sessions Court, Mapusa while rejecting the Applicant’s previous
application for bail dated 29.08.2024 and no additional material was
brought on record and neither was any explanation rendered to
justify the transactions between the Applicant and Accused No. 1.
BAIL APPLICATIONS OF CO-ACCUSED
6. Accused No. 1/was intercepted and arrested at the Thivim
Railway Station on 19.08.2024 and was found to be in the
possession of 883.68 grams of Charas. By an order of the District &
Additional Sessions Judge II, Mapusa, North Goa, dated 30.09.2024
in Bail Application No. 186/2024, Accused No. 1 was enlarged on
bail.
7. Accused No. 3 was arrested on 28.10.2024. A bail Application
was filed by Accused No. 3 on 12,03.2025 before the Court of
Additional Sessions Judge-3, North Goa, Merces Tiswadi Goa,
which came to be rejected by an order dated 29.03.2025, stating that
the transactions revealed by the Bank Account statement between
Accused No. 3 and the Applicant suffice to demonstrate their
involvement in the alleged trafficking of the contraband.
8. Accused No. 4 was arrested on 16.01.2025 and was enlarged
on bail by an Order of the Court of District & Additional Sessions
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Judge II, Mapusa, North Goa dated 28.01.2025 in Bail Application
No. 25/2025.
REPLY FILED BY THE RESPONDENTS
9. Opposing the present Application, the Respondent, in their
reply, have urged the following grounds for rejecting the bail:
(i) Considering the criminal antecedents of the Applicant, it is
likely that he may engage in offences of the like nature, if
enlarged on bail.
(ii) That it is highly likely that the Applicant may abscond
with the intention to avoid the proceedings instituted against
him.
(iii) Though the statements of the witnesses have been
recorded, the trial is yet to commence. In the event that the
Applicant is granted bail, there is an apprehension that the
Applicant may threaten the witnesses.
(iv) That there is no change of circumstance on the basis of
which the Applicant seems to have approached this court for
a second time, seeking bail. As such, the application deserves
to be dismissed at the outset.
APPLICANT’S ANTECEDENTS
10. The reply filed by the Respondent spells out the criminal
antecedents of the Applicant that came to light during the course of
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investigation. They are listed below:
(i) Crime No. 41/2021 dated 16.02.2021 u/s 20 & 25 of the
NDPS Act had been registered against the Applicant at
Kullu Police Station in Himachal Pradesh. By an Order
of the Special Judge-II, Kullu, Himachal Pradesh, dated
15.03.2021, the Accused No. 2/Ibrahim was granted
bail in the said case.
(ii) Crime No. 1171/16 u/s 118(a) of Kerala Police Act has
been registered against the Applicant at the Ernakulam
Town South Police Station.
APPLICANT’S SUBMISSIONS
11. Ms. Sana Khan, learned Advocate for the Applicant, advanced
the following submissions to make a case for grant of bail:
(i) That the voluntary statements made by Accused Nos. 1, 3,
and 4, as well as the voluntary statement of the Applicant
under Section 67 of the NDPS Act, are inadmissible for the
purpose of establishing the liability of the Applicant, as
such statements are not admissible as evidence against the
Applicant.
(ii) That the applicability of the provisions of Section 37 of the
NDPS Act is contingent upon the quantity of the
contraband seized being classified as a commercial
quantity. The Charas recovered from the person of thePage 8 of 27
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CRMAB-53-2025Applicant was weighed at 883.68 grams, which constitutes
a variable quantity; therefore, the threshold for the
application of Section 37 is not satisfied in this case.
(iii) That Section 27A of the NDPS Act is not applicable to the
Applicant, as the requisite nexus between the transactions
allegedly carried out by Accused No. 3 with Accused No.
2, and between Accused No. 2 and Accused No. 3, and the
transaction between Accused No. 1 and Accused No. 4 (the
supplier), has not been adequately established by the
evidence on record.
(iv) That the Applicant has been arrested with no
communication of the grounds of arrest to him, in
contravention of his fundamental right under Article 22(5)
of the Constitution of India.
(v) That there was no recovery of contraband effected from
the Applicant’s possession and that he was arrested on the
confessional statement of Accused No. 1, which is not
admissible in evidence.
(vi) The Applicant claims invoking Section 27A of the NDPS
Act, 1985 against him was unjustified, given that the said
Section could be invoked if the Accused has independently
financed a transaction without being a part of the actions
mentioned in Section 8(c) of the NDPS Act.
(vii) The Applicant claims parity citing that Accused No. 1, who
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CRMAB-53-2025was allegedly found in possession of the alleged
contraband, was granted bail by the Sessions Court,
Mapusa vide order dated 30/09/2024, in Bail Application
No. 186/2024 and Accused No. 4, who allegedly supplied
the contraband to Accused No. 1, was granted bail by the
Sessions Court, Mapusa vide order dated 28.01.2025, in
Bail Application No. 125/2025.
(viii) That the Investigation has been completed, statements of
the witnesses have been recorded and the Chargesheet has
been filed on 06.02.2025, which does not sustain any
reason to detain Accused No. 4 in Judicial Custody.
12. Learned Advocate for the Applicant relied on the following
judgments in support of her arguments:
(i) Lucky Sharma v. State of Goa, Criminal Application (Bail)
No. 8 of 2022, High Court of Bombay at Goa
(ii) Maulana Mohammed Amir Rashadi v. State of U.P. & Anr.,
(2012) 2 SCC 382.
(iii) Vihaan Kumar v. State of Haryana & Anr., 2025 SCC
OnLine SC 269
(iv) Sachin Mahipati Nimbalkar v. The State of Maharashtra,
(2024) SCC Online Bom 3493
(v) Bharat Chaudhary v. Union of India, (2021) 20 SCC 504.
(vi) Harsh Yadav v. State of Government of NCT of Delhi, Bail
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CRMAB-53-2025Application 136 of 2025
(vii) Arun Kumar Azad v. Narcotics Control Bureau, Bail
Application No. 3620 of 2023, order dated 02.04.2024 (High
Court of Delhi).
(viii) State of West Bengal v. Rakesh Singh Alias Rakesh Kumar
Singh, (2022) 19 SCC 306
(ix) Narcotics Control Bureau v. Pallulanib Ahmad Arimutta,
(2022) 12 SCC 633
(x) Shakil Ahmed Peer Mohd. Shaikh v. Union of India & Anr.,
2024 SCC OnLine Bom 832
(xi) Ranjan Shaam Mawar v. The State of Maharashtra, Bail
Application No. 3880 of 2021, decided on 11.10.2022, High
Court of Judicature at Bombay.
(xii) Kiran Machhindra Kale v. The Senior Inspector of Police,
Criminal Bail Application No. 2987 of 2022, decided on
14.10.2024, High Court of Judicature at Bombay.
(xiii) Toofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1.
SUBMISSIONS OF THE PUBLIC PROSECUTOR
13. Per Contra, Mr. Somnath Karpe, learned Additional Public
Prosecutor, put forth the following contentions:
(A) That the rigors of Section 37 would apply to the case of the
applicant since he has been charged with the offence of financing
illicit traffic of drugs under Section 27-A;
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(B) It was further submitted that the CDR of the phone record of
the applicant which clearly shows that he was in touch with accused
no.1 immediately prior to the accused no.1 being searched; The
CDR also reveals conversations between the applicant, accused no.3
and between accused no.1 and accused no.4, which demonstrates
the connection between them and the fact that the applicant is the
main financer of the drug ring; It was further submitted that the UPI
transactions and bank transfers from the accused no.3 to the
applicant and from the applicant to the accused no.1, the person who
has transported the drugs, would clearly establish the fact that the
applicant was the main financer of the network of supply of the
drugs.
(C) Learned Public Prosecutor relied on the following judgments
in support of his arguments:
(i) Kasireddy Upendra Reddy v. State of Andhra Pradesh &
Ors., 2025 SCC OnLine SC 1228
(ii) State of Kerala & Ors. v. Rajesh & Ors., (2020) 12 SCC 122.
(iii) Union of India v. Ratan Mallik Alias Habul, (2009) 2 SCC
624.
(iv) Narcotics Control Bureau v. Mohit Aggarwal, (2022) 18
SCC 374.
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CONSIDERATIONS
14. The material on record reveals that the alleged contraband was
found in possession of accused no.1 when he was taken off the train
at Thivim Railway Station. The contraband was, after being tested
with a kit, at the place where the accused no.1 was searched, was
found to be Charas. The total quantity seized was 883.68 grams,
which by definition is a variable quantity. Accused no.1 was
arrested immediately thereafter on 19.08.2024. The rigors of
Section 37 would per se not apply to the accused no.1. It was for
this reason that the accused no.1 was admitted to bail by the
Sessions Court on 30.09.2024.
15. The statement of accused no.1 under Section 67 was recorded
by the IO and it is through his statement that the Applicant was
implicated as being the financer and supplier of the contraband. In
Tofan Singh (supra), in a majority decision of the Supreme Court, it
was held that a confessional statement recorded under Section 67 of
the NDPS Act is inadmissible in the trial of an offence under that
Act. Tofan Singh (supra) has been followed in Bharat Chaudhary
(supra), observing as follows:
“5. Being mindful of the recent verdict of a Three Judge Bench
of this Court in Tofan Singh v. State of Madras wherein as per
the majority decision, a confessional statement recorded
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CRMAB-53-2025under Section 67 of the NDPS Act has been held to be
inadmissible in the trial of an offence under the NDPS Act, the
learned Special Judge, EC & NDPS Cases, Chennai granted
bail to Bharat Chaudhary [A-4].
****
10. After carefully examining the arguments advanced by
learned counsel for the parties and having cursorily glanced
at the records, we are of the opinion that the impugned order
cancelling the bail granted in favour of Bharat Chaudhary [A-
4], is not sustainable in view of the fact that the records sought
to be relied upon by the prosecution show that one test report
dated 6 ^ m December, 2019, two test reports dated 17th
December, 2019 and one test report dated 21 December, 2019
in respect of the sample pills/tablets drawn and sent for testing
by the prosecuting agency conclude with a note appended by
the Assistant Commercial Examiner at the foot of the reports
stating that “quantitative analysis of the samples could not be
carried out for want of facilities”. 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 the 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 A-4 at
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CRMAB-53-2025of A-4 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.
11. 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 15th July, 2021. This is all the more so
when such a reliance runs contrary to the ruling in Tofan
Singh (supra). The impugned order qua A-4 is, accordingly,
quashed and set aside and the order dated 2nd November,
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.”
16. This Court, in Shakil Ahmed (supra), after making reference
to Tofan Singh (supra) has considered the admissibility of a
voluntary statement of an accused under Section 67 of the NDPS
Act, and of CDRs collected during investigation, and has held as
under:-
“8. 1 have carefully perused the compliant and the documents
annexed with it, the averments in the application and the
contentions in the affidavit-in-reply filed on behalf of
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CRMAB-53-2025respondent No. 1. I have also given anxious consideration to
the rival submissions canvassed across the bar.
9. In view of the provisions contained in Section 37(1)(b)(ii) a
person accused of an offence punishable under the Act
involving commercial quantity cannot be released on ball
unless the Court is satisfied that there are reasonable grounds
for believing that he is not guilty and that he is not likely to
commit any office while on bail. The term “reasonable
ground” has been construed to mean something more than
prima facie grounds. It connotes substantial probable causes
for believing that the accused is not guilty of the offence
charged and this reasonable belief contemplated in turn
points to existence of such facts and circumstances as are
sufficient in themselves to justify recording of satisfaction that
the accused is not guilty of the offence charged (Union of
India v. Shivshankar Kesari).
10. Can the twin test be said to have been satisfied in this
case?
11. Evidently, the parcel was allegedly booked at GPO,
Mumbai. The receipt of booking (page 57) shows that Mr.
Rahim Khan R. Pathan was the consignor and the consignee
was Jafri Khan, based at USA. There is material to indicate
that Rahim Khan had not booked the said parcel and his
credentials were fraudulently used to book the parcel.
****
16. The endeavour on behalf of the prosecution was to rely
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CRMAB-53-202567 of the NDPS Act, 1985 and the CDR. In view of the decision
of the Supreme Court in the case of Tofan Singh v. State of
Tamil Nadu, a statement recorded under Section 67 of the
NDPS Act, 1985 cannot be used as a confessional statement
in the trial of an offence under the NDPS Act, 1985. Therefore,
it would be impermissible for prosecution to press into service
the voluntary statement of the applicant under Section 67 of
the NDPS Act, 1985 to demonstrate that the applicant was in
possession of the narcotic substance.
17. It is well recognised that “possession” which finds mention
in Section 22 of the NDPS Act, 1985 connotes conscious
possession. The expression, “possession” is a relative term
and assumes different colours in different context. In the case
of Mohan Lal v. State of Rajasthan, it was enunciated that the
term, “possession” consists of two elements. First, it refers to
the corpus or the physical control and the second, it refers to
the animus or intent which has reference to exercise of the said
control. The word, “possession” refers to a mental state as is
noticeable from the language employed in Section 35 of the
NDPS Act, 1985.
18. Reverting to the facts of the case, the situation which
obtains is that apart from the statement of Mr. Dilip Pandey,
there is no other material to prima facie connect the applicant
with the factum of possession, much less the knowledge that
the parcel contained the narcotic substance. As is evident, it
was Mr. Dilip Pandey, who had taken the parcel to the booking
counter and booked it. Rahim Khan, the purported consignor
did not claim that he had known the applicant. Nor there
appears any material to show that on the day of occurrence
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the applicant had either packed the parcel at the counter of
Mr. Dilip Pandey or accompanied Mr. Dilip Pandy to the
booking counter. The accusation against the applicant thus
rests on the statement of a person, who had himself booked the
said parcel containing the narcotic substance. Second
circumstance of the telephonic conversation between the
applicant and Mr. Guddu, in the absence of the transcript,
does not by itself incriminate the applicant.
19. I am, therefore, impelled to hold that the applicant has
succeeded in making out a substantial probable case to
believe that the applicant may not have been found in
conscious possession of the narcotic substance. The Court
may thus be justified in drawing an inference that the
applicant may not be guilty of the offences punishable under
the NDPS Act, 1985. The Court is not informed that the
applicant has antecedents.”
17. Thus, as held in the aforementioned judgments, the statement
of accused no.1, which is the document by which the applicant has
been implicated and roped in as the financer, and the provision of
Section 27-A has been applied to him, is inadmissible in evidence,
and its contents could not be looked at for the purpose of deciding
his bail application.
18. From the material on record, the search conducted by the
NCB at the residence of the applicant revealed no incriminating
material. This is recorded in the Nil Panchanama dated 19.08.2024.
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Thereafter, immediately before his arrest, the statement of the
applicant under Section 67 was recorded, which reveals the
applicant’s admission that he was involved in financing a drug ring
and in financing the contraband seized from accused no.1. This
statement being inadmissible in evidence, being self-incriminatory
as held in Tofan Singh (supra) and in Shakil Ahmed (supra) would
have to be discarded. The only other material, which is placed
reliance on by the prosecution to connect the applicant to the
accused no.1 and other accused, to attempt at demonstrating that the
applicant was directly financing the drug network was by placing
reliance on the bank statements to indicate the transactions from the
accused no.3 to accused no.2 and from accused no.2 to accused no.1.
For easy reference, the details of the money transactions amongst
the accused persons are given below in tabular form:
A. Accused No. 3 (ICICI Bank) to Applicant (Federal Bank)
DATE OF TRANSACTION AMOUNT
12.08.2024 50,000/-
12.08.2024 35,000/-
B. Accused No. 3 (Bank of Baroda) to Applicant (Federal Bank)
DATE OF TRANSACTION AMOUNT
12.08.2024 40,000/-
12.08.2024 50,000/-
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C. Applicant (Federal Bank) to Accused No. 1 (Bank of Baroda)
DATE OF TRANSACTION AMOUNT
13.08.2024 1,500/-
14.08.2024 500/-
15.08.2024 49,999/-
D. Applicant (Federal Bank) to Accused No. 1 (Canara Bank)
DATE OF TRANSACTION AMOUNT
15.08.2024 49,999/-
16.08.2024 2,500/-
17.08.2024 4,500/-
17.08.2024 2,000/-
E. Applicant (Federal Bank) to Accused No. 1 (Indian Bank)
DATE OF TRANSACTION AMOUNT
15.08.2024 49,999/-
F. Cash withdrawals by Accused No. 1 at Manikaran ATM,
Himachal Pradesh
CANARA BANK
DATE OF TRANSACTION AMOUNT
15.08.2024 10,000/-
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15.08.2024 10,000/-
15.08.2024 10,000/-
15.08.2024 10,000/-
15.08.2024 10,000/-
INDIAN BANK
DATE OF TRANSACTION AMOUNT
15.08.2024 10,000/-
15.08.2024 10,000/-
15.08.2024 10,000/-
15.08.2024 10,000/-
15.08.2024 10,000/-
BANK OF BARODA
DATE OF TRANSACTION AMOUNT
15.08.2024 10,000/-
15.08.2024 10,000/-
16.08.2024 10,000/-
16.08.2024 10,000/-
16.08.2024 10,000/-
19. If one examines these transactions, an amount of
approximately Rs.1,50,000/- has been deposited by the applicant
into the account of accused no.1 between 13.08.2024 and
15.08.2024 after which accused no.1 has made fifteen withdrawal
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transactions of Rs.10,000/- each on 15.08.2024. The accused no.3
is alleged to have transferred a total of Rs.1,75,000/- to the account
of the applicant all on 12.08.2024. It is the prosecution’s submission
that based on these transactions the money trail from accused no.3
to accused no.2 and then to accused no.1, who allegedly procured
the drugs from accused no.4 is established. However, the only
manner in which the accused no.1 is connected with accused no.4,
is once again through the statement under Section 67 of the accused
no.2, which is inadmissible. Further, a perusal of the statement
under Section 67 of the accused no.4, which is recorded on
21.01.2025, almost five months after the applicant was arrested,
would reveal that there is no implication by accused no.4 of either
accused no.1 or the applicant. Even otherwise, the statement under
Section 67 of accused no.4 was taken after he was arrested on
16.01.2025, whilst in custody, and could not be termed as a
voluntary statement. Prima facie therefore, from this material, it
cannot be established, unless evidence is led, that the applicant was
directly involved in financing illicit traffic of narcotics.
20. On this material alone, I am satisfied that there is a prima facie
case made out by the applicant that there are reasonable grounds to
believe that he is not guilty for the offence under Section 27A of the
Act.
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21. The further material relied upon by the prosecution is the
CDR record of the phone calls between the applicant and the
accused no.4 and the accused no.1. The CDR records are in the
nature of electronic evidence and would be required to be proved in
evidence. However, the fact remains, that on examining these
records what is revealed is that the applicant has recorded one call
to accused no.4 on 14.08.2024, and two calls to the accused no.1,
the first being on 16.08.2024 and the second on 19.08.2024, when
the accused no.1 was arrested at the railway station. Merely
because there have been calls made by the applicant to accused no.4
and accused no.1, at this stage does not establish the direct
involvement of the applicant in an offence under Section 27A of the
Act. It is proved in evidence after production of the CDR records
through the phone companies and after expert evidence has been
recorded. These records would however, at this stage, not advance
the case of the prosecution any further than demonstrating that the
applicant was in contact with accused no.4 and accused no.1.
22. Accused no.1, who was arrested on 19.08.2024 and was
allegedly in possession of the contraband, has been granted bail on
30.09.2024 since rigors of Section 37 would not apply to his case,
the quantity of Charas in his possession being variable quantity.
Accused no.4 was granted bail on 28.01.2025 for reasons that he
was found to be the supplier of the contraband, which was variable
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quantity. Bail applied for by accused no.3 was rejected by order
dated 29.03.2025 and he is still in custody. The investigation has
been completed and a charge-sheet was filed on 06.02.2025. Charge
is yet to be framed against the accused, and the charge-sheet is
pending before the Sessions Court. It would obviously take
considerable time for the charge to be framed, and if framed against
these accused, the trial to commence. The charge-sheet cites
eighteen witnesses, which would further take considerable time for
their evidence to be recorded. For reasons stated above, no purpose
would be served in keeping the applicant in custody until trial is
completed.
23. The grant of bail is opposed by the State on the count that the
applicant has been charged of an offence under Section 20 of the
Act and is facing trial in Himachal Pradesh. He is admittedly out
on bail in that case under an order dated 15.032021. The order
granting bail to the applicant records that the quantity of contraband
involved in that case was a variable quantity, and therefore the rigors
of Section 37 do not apply. Certain conditions were imposed on the
applicant whilst passing that order, and it is not the case of the
prosecution that any of them have been breached. The other case
pending against the applicant is a proceeding filed under the Kerala
Police Act under Section 118(a) thereof, which is an offence of
being found in public place in an intoxicated manner or rioting
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condition or incapable of looking after himself, and attracts a fine
not exceeding Rs.10,000/- or imprisonment which may extend to
three years. This case pertains to the year 2016 and is a relatively
minor offence. There are no other criminal antecedents referred to
by the State in relation to the applicant. In my opinion therefore,
neither of the above pending cases could operate as an embargo to
the grant of bail to the applicant.
24. The only issue that now remains, is whether there is a
reasonable apprehension made out by the State, that the applicant
would flee from the trial or is likely to commit an offence while on
bail. There is no material on record that the applicant has otherwise
breached the conditions of his earlier bail order in the case where he
is standing trial in Himachal Pradesh. Certain conditions can be
imposed on the applicant, on his movement, after considering that
he is required to stand trial in Himachal Pradesh, besides in the State
of Goa.
25. Considering that on the aforementioned grounds, as I propose
to release the applicant on bail, I need not consider the submissions
of the applicant that the grounds of arrest were not explained to the
applicant, and he would be entitled to bail in terms of the judgment
of Vihan Kumar (supra); The judgment of Vihan Kumar (supra),
insofar as one of the views taken therein that the grounds of arrest
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are required to be given in writing, is presently being re-considered
by a larger Bench of the Supreme Court.
26. Considering all these facts and for reasons stated above, the
application of the Accused for bail is granted on the following
conditions:
(i) The Accused/Applicant shall be released on executing a
Bail Bond of Rs.1,00,000/- (Rupees One Lakh only) with one
surety in the like amount, to be executed before the Sessions
Court, North Goa at Merces.
(ii) The Accused/Applicant shall furnish to the Sessions
Court and Investigating Officer a copy of his Aadhaar card,
full residential address at Goa and in his home State of Kerala,
his email ID and mobile phone number, which shall be kept
functional and on at all times to enable the Investigating
Officer to contact him;
(iii) The Accused/Applicant shall not interfere with any of
the witnesses or attempt to contact them by himself or through
any of his associates. He 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 him from disclosing these facts to the
Court.
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(iv) The Applicant shall not leave the State of Goa without
permission of the Sessions Court, Merces; If the Applicant possesses
a passport he shall surrender the same and deposit such passport
before the Sessions Court.
(v)The Accused/Applicant shall present himself before the I.O.
for two months immediately after this order, on the first and
fourth Monday between 10.00 a.m. and 1.00 p.m.
(vi) The applicant shall attend every date of hearing of the
NDPS (NCB) Special Case No. 17/2025 before the Sessions
Court at Merces unless exempted by that Court from
appearance through an appropriate application.
27. The application stands disposed of in the above terms.
28. All concerned to act on an authenticated copy of this order.
VALMIKI MENEZES, J.
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