Dismissed

Abdul Mohammed Shaikh @ Abdul Thane v. the Union of India and Anr.

Bombay HC14 Jun 2022REVN/28/2022

Case brief

AI extract

What is this about?

In criminal revision applications challenging an order rejecting discharge petitions, the Single Judge held that a prima facie case of conspiracy under the NDPS Act was made out based on investigation material, and the applications were dismissed.

What did the court decide?

Criminal Revision Applications No. 28 of 2022 and No. 29 of 2022 rejected; applicants not discharged.

Abdul Mohammed Shaikh @ Abdul Thane Vs the Union of India… — Narcotics (NDPS) | Bombay HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL REVISION APPLICATION NO. 28 OF 2022

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Abdul Mohammed Shaikh @ Abdul Thane
Age : 71 Years,
R/o Room No.1,
Jumma Masjid Trust Road,
M.H. School, Thane, 400 601. …Applicant
Versus
1. Union of India
 (Narcotic Control Bureau)
2. State Of Maharashtra ...Respondents

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WITH
CRIMINAL REVISION APPLICATION NO. 29 OF 2022

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Arif Abdul Shaikh
Age : 31 Years,
R/o Room No.1,
Jumma Masjid Trust Road,
M.H. School, Thane, 400 601. …Applicant
Versus
1. Union of India
 (Narcotic Control Bureau)
2. State Of Maharashtra ...Respondents
….

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...Respondents

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Mr. Ayaz Khan, Advocate for the applicants.

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Mr. Shreeram Shirsat, Special P. P. a/w Mr. Amandeep Singh, for
Respondent No.1 – UOI.

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Mr. A. R. Patil, APP for the Respondent – State.

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CORAM : PRAKASH D. NAIK, J.
DATE: 14th JUNE 2022.

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PER COURT:

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1. The applicants in both these applications are prosecuted for

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Digitally signed by SAJAKALI SAJAKALI LIYAKAT LIYAKAT JAMADAR JAMADAR Date:2022.06.21 15:08:41 +0530

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Sajakali Jamadar

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the offences punishable under Section 29 r/w Sections 8(c) and
20(c) of the Narcotic Drugs & Psychotropic Substances Act, 1985
(for short ‘NDPS Act’), Section 8(c) r/w Section 20(c) of the NDPS
Act and Section 29 and Section 28 of the NDPS Act. The applicants
are arraigned as accused No.3 and accused No.4 in NDPS Special
Case No.39 of 2017.

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2. The brief facts of the prosecution case are as follows :-

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i)The applicants were arrested on 24th December, 2016
in C.R. No.13 of 2016. The respondent received information
that on 15th October, 2016, two persons namely Abdul Karim
Yunus Karobari @ Lala Bhai (accused No.1) and Mohd. Ayaz
Sheikh @ Walla bhai (accused No.2) are likely to come for
sale of charas to their customers near Mumra Rickshaw
Stand, Kalwa Naka Thane. Based on the information, the
officers of respondent arrenged a raid and apprehended
accused No.1 carrying black colour bag along with accused
No.2 at the spot. Search of bag resulted in recovery of 4
parcels wrapped in brown cello tape and upon opening the
same, it was found containing dark brown colour sticky
substance in the form of globules. On testing the same was
found to be charas. The total weight of the balls was 6.5 Kgs.

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Sajakali Jamadar

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The contrabands were packed and sealed under panchanama
dated 16th October, 2016.

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ii)Statements of accused Nos.1 and 2 were recorded on
16th October, 2016 under Section 67 of the NDPS Act. Both
were arrested.

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iii)During the statement under Section 67, the accused
No.1 revealed the name of the applicants. Both were
apprehended on 23rd December, 2016. Their statements were
recorded. They were involved in other cases i.e. C.R. No.12
of 2016 and C.R. No.17 of 2016. They were arrested in all
three cases. Statements of the applicants were recorded
under Section 67 of the NDPS Act. During the investigation
name of Ashok Kumar Verma (accused No.5) was revealed as
original supplier. On completing investigation, charge-sheet
was filed against the applicants.

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3.The applicants preferred an application for discharge before
the Special Court under the NDPS Act. The said applications were
rejected by order dated 6th September, 2021.

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4. The applicants have preferred these applications challenging the order refusing discharge passed by the trial Court.

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5. learned Advocate for the applicants submitted as follows :

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Sajakali Jamadar

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i)The applicants are falsely implicated in this case. No
contraband drug was recovered from them.

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ii)The applicants are prosecuted only on the statement of
the co-accused which are retracted by them.

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iii)The prosecution is relying on statement under Section
67 of the NDPS Act to prosecute the applicants for the
aforesaid offences. Such statement is not admissible in
evidence. It has no evidentiary value.

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iv)The contraband was recovered from accused Nos.
1 & 2. According to prosecution, the investigation and
interrogation of the co-accused revealed the involvement of
the applicants. Merely on such statement or the statement of
the applicants purportedly recorded under Section 67 of the
NDPS Act, no charge can be framed against the applicants.
The Hon’ble Supreme Court in the case of Tofan Singh V/s.
State of Tamilnadu delivered in Criminal Appeal No.152 of
2013 has held that the statement of accused under Section 67
of the NDPS Act is not admissible in evidence. There is no
other evidence against the applicants.

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v)The trial Court while rejecting the application was
influenced by the fact that there are criminal antecedents

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against the applicants. In the absence of any cogent evidence
to proceed against the applicants, merely on the ground of
antecedents the applicants cannot be subjected to prosecution.

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vi)The statement under Section 67 of the NDPS Act
cannot be used for framing charge.

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vii)In the absence of cogent evidence, the Court has to
discharge the accused under Section 227 of the Criminal
Procedure Code.

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viii)The impugned orders suffers from illegality and
deserves to be set aside.

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6. Learned counsel for applicants has relied upon following

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decisions :-

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i) State of Orissa V/s. Devendra Nath Padhi1. ii) Sanjeev Chandra Agarwal & Anr. V/s. Union of India (Criminal Appeal No. 1273 of 2021 dated 25^th October, 2021.)

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iii)Monish H. Bhalla V/s. Staya Parkash Bahi alias S.P.
Bahi alias S.P. and others2.

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iv)Suresh Budharmal Kalani @ Pappu Kalani V/s. State
of Maharashtra3.

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1 2005(1) SCC 568.

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2 2005(1) ALL MR (Cri) 188.

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3 1998 SCC (Cri) 1625

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v)Order dated 21st January, 2013 passed by this Court in
the case of Salim Babu Shaikh @ Aitun V/s. The State of
Maharashtra inCriminal Appeal No.1338 of 2012.

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7.learned counsel for Respondent No.1 submitted that, prima
facie case is made out against the applicants. At the stage of
discharge, the Court is required to consider the material on record.
The submissions urged by the applicants are required to be
considered during the trial. The offence is of serious nature. The
accused were tried for the offences under the NDPS Act. They were
also charged for offence of conspiracy. At this stage, the case of the
prosecution cannot be discarded. While adjudicating the
application under Section 227 of Cr.P.C., the Court is not expected
to conduct rowing inquiry. During the course of investigation, the
involvement of the applicants was revealed. All the accused were
acting in conspiracy with each other. The investigation refers to
active involvement of the applicants. The applicants are father and
son, who acted in connivance with each other and in conspiracy
with the co-accused. During the investigation, the applicants had
disclosed the involvement of the accused No.5. Learned counsel
relied upon the decision of this Court in the case of Govind
Sakharam Ubhe V/s. The State of Maharashtra dated 11th June,
2009 delivered in Criminal Appeal No.18 of 2019.

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8.It is the case of the prosecution that, on the basis of
information, accused Nos. 1 & 2 were apprehended. 6.5 Kgs.
charas was recovered from them. Interrogation of the arrested
accused revealed the involvement of the applicants. Both of them
were apprehended on 23rd December, 2016. The applicants were
arrested in three cases registered vide C.R. No.12 of 2016 and C.R.
No.17 of 2017. The interrogation of the applicants revealed
involvement of the accused No.5 Ashok Kumar Verma as the
original supplier. On completing investigation, complaint has been
filed before the trial Court. The applicant in Criminal Revision
Application No.28 of 2022 was arrested and involved in various
other cases numbered as 37/2003, 120/2006, 128/2006,
192/2006, 232/2006, 316/2006, 11/2007, 144/2004, 237/2009
and 11/2013. According to the prosecution, the role of the
applicants cannot be isolated from the co-accused. The case is of
conspiracy and the accused were charged under Section 29 r/w
Section (8)(c) and Section 20(c) of the NDPS Act.

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9.It is pertinent to note that the present case is at the stage of
framing charge. The charge is also under Section 29 of the NDPS
Act which relates to conspiracy. The material collected by the
investigating agency urging conspiracy will have to be decided in
the event and it cannot be discarded at this stage. The absence of

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recovery cannot be a ground for discharge. The learned Sessions
Judge has given reasons for the rejection the application for
discharge. The trial Court has observed that, it will be very early
stage to come to conclusions, without giving chance to the
prosecution to place their stand during the trial to prove
allegations. From the complaint filed by the prosecution it can be
seen that as per the averments in Paragraph – 26 of the said
complaint, the accused have entered into and were party to
continuing the party to subject criminal conspiracy to possess and
sell 6.5 Kgs. charas, narcotic drug and thereby committed offence
punishable under Section 29 of the NDPS Act r/w Section 8(c),
Section 20(c), Section 29 and Section 28 of the NDPS Act.
Paragraph – 24 of the complaint refers to the fact that letters dated
4th April, 2017 were sent to M/s. Reliance Telecommunications Pvt.
Ltd. and Ms. Vodafone Essar Ltd. for providing CDR of mobile
numbers mentioned therein. The requisite report is yet to be
received by NCB and the same will be tendered in the case. The
observations made in the order granting bail cannot be considered
for discharging the accused from the proceedings.

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10.In the case of Union of India Vs. Prafulla Kumar Samal, 1979
SCR (2) 229 it was observed that, where the material placed before
the Court disclose grave suspicion against the accused which has

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not been purportedly explained, the Court will be fully justified in
framing a charge and proceeding with the trial. In the case of State
of Maharashtra and Others V/s. Som Nath Thapa and Others
1996(4) SCC 659 it was observed that, if there is ground for
presuming that the accused has committed the offence, it can be
said that the prima facie case has been made out against the
accused. Even if the Court finds that the accused might have
committed the offence, it can frame charges. At the stage of
framing of charge, probative value of the materials on record
cannot be gone into. In the case of Govind Ubhe V/s. State of
Maharashtra it was held that the principles laid down by the
Supreme Court need to be summarized. At the stage of Section
227 of the Code, the court has power to sift the materials collected
by the prosecution to find out whether there is prima facie case
against the accused. The Court has to be satisfied that there is
ground for presuming that the accused has committed the offence
or that there is no sufficient ground for proceeding against him.
The Court’s inquiry must not be directed to find out whether the
case will end in conviction.

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11.The learned counsel for the applicants has relied several
decisions in support of his submissions. In the case of State of
Orissa V/s. Devendra Nath Padhi (supra) it was observed that, if

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the the evidence even if fully accepted cannot show that the
accused committed the offence, the accused deserved to be
discharged. In the case of Sanjeev Chandra Agarwal & Anr. V/s.
Union of India (supra) the apex Court had observed that no
narcotic drug or psychotropic substances were recovered from the
premises of the appellants. The High Court was not correct in
relying on the statements of other accused under Section 67 of the
NDPS Act. In the case of Monish H. Bhalla V/s. Staya Parkash
Bahi alias S.P. Bahi alias S.P. and others (supra) this Court had
observed that confession made by the co-accused cannot be treated
as substantive evidence, but only as corroborative piece of
evidence. In the case of Suresh Budharmal Kalani @ Pappu Kalani
V/s. State of Maharashtra (supra) the apex Court had observed that
the Court is required to confine its attention to only those material
collected during investigation which can be legally translated into
evidence. This Court in the case of Salim Babu Shaikh @ Aitun
V/s. The State of Maharashtra (supra) has observed that the trial
Court could not have taken into consideration material which
would not be admissible in evidence.

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12.As stated herein above, the accused are facing serious
charges. During the course of investigation, the investigating
agency has collected evidence against the applicants. They are

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charged for the charge of conspiracy. The prosecution should be
given an opportunity to test the evidence during trial. This is not
the stage to appreciate the submissions of learned counsel for the
applicants. Hence, no case is made out to grant relief in these
applications.

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ORDER

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1. Criminal Revision Application No.28 of 2022 and Criminal Revision Application No.29 of 2022 are rejected and stand disposed of.

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(PRAKASH D. NAIK, J.)

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Sajakali Jamadar

Abdul Mohammed Shaikh @ Abdul Thane v. the Union of India and Anr.

Case brief

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Abdul Mohammed Shaikh @ Abdul Thane v. the Union of India and Anr.

Case brief

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