Allowed

Shoaib Ayub Sikrawa v. Anti Narcotics Cell and Anr.

Bombay HC21 Dec 2023BA/642/2022

Case brief

AI extract

What is this about?

The High Court allowed the bail application of an accused charged under the NDPS Act. Finding that the prosecution failed to establish complicity due to lack of direct evidence and recoverable phone data, the Court held that Section 37 NDPS Act does not apply. Bail was granted on standard conditions.

What did the court decide?

Allowed bail on furnishing ₹50,000 bond with one or two sureties in the like amount, subject to standard conditions.

Shoaib Ayub Sikrawa Vs Anti Narcotics Cell and Anr. — Narcotics (NDPS) | Bombay HC (2023)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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BAIL APPLICATION NO.642 OF 2022

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Shoaib Ayub Sikrawa...Applicant

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Versus
Anti Narcotics Cell and Anr....Respondents

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….
Mr. Taraq Sayed with Ms Alisha Parekh, Ms Ashwini Achari i/b. Mr.
Advait Tamhankar for the Applicant.
Ms P.N. Dabholkar, APP for the Respondents -State.

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 CORAM: G.A. SANAP, J.

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 DATE : 21st DECEMBER, 2023.

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P.C.:-

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1.The applicant- accused No.3 has made this application

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for bail in C.R. No.55 of 2021 registered with Anti Narcotic Cell,
Bandra Unit, Mumbai, for the offences punishable under Section
8(c) r/w Sections 21(c), 22(c), 27(a) and 29 of the Narcotic Drugs
and Psychotropic Substances Act, 1985.

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2.Heard Mr. Taraq Sayed, learned counsel for the accused

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No.3 and Ms P.N. Dabholkar, learned APP for the Respondent-State.

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Digitally signed by MEGHA MEGHASHREEDHARPARAB SHREEDHARPARABDate:2023.12.22 16:23:09 +0530

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Perused the record and proceedings.

Megha

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3.The learned Advocate submitted that accused No.3 was

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arrested on the basis of Whatsapp messages sent by accused No.1 to
the mobile phone of accused No.3. Learned Advocate submitted that
accused No.3 was not present on the spot when the recovery of
narcotic drug was made from accused Nos.1 and 2. The learned
Advocate submitted that the CA report of data allegedly stored in the
mobile phone of accused No.3 is of no help to the case of the
prosecution. Learned Advocate submitted that even if the whatsapp
messages sent by accused No.1 are considered, the same would
indicate that the accused No.1 had dealings with the father of the
accused No.3. Learned Advocate submitted that save and except the
statement of the co-accused there is no other evidence compiled in
the charge-sheet to establish complicity against accused No.3 in
commission of the crime. Learned Advocate submitted that there is
no evidence against accused No.3, which would warrant his
indefinite incarceration. Learned Advocate submitted that accused
No.3 is ready to abide by the conditions that may be imposed by this
Court.

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4.Learned APP submitted that the photographs of the

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narcotic drugs were sent by accused No.1 to the mobile phone of
accused No.3. Learned APP pointed out that sim card of the mobile
phone was in the name of Shahin Sikrawa, sister of accused No.3.
The sister has given a statement that accused No.3 was using her
mobile phone. Learned APP submitted that even though the report
of the data from the mobile phone of accused No.3 has not
supported case of the prosecution, the evidence in the form of
Whatsapp chats retrieved from the mobile phone of accused No.3 is
sufficient to establish the complicity of accused No.3 in this crime.
Learned APP pointed out that accused No.3 hails from Madhya
Pradesh and therefore the possibility of his fleeing from justice
cannot be ruled out. It is further submitted that the possibility of the
accused indulging in the similar crime also cannot be ruled out.

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5.It is the case of the prosecution that on the basis of the

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oral information the raid was conducted and the accused Nos.1 and
2 were apprehended on the spot. 1 Kg 800 grams of brown sugar
and 1 kg 100 grams of Mephedrone was found from possession of
accused No.1. 150 grams of Mephedrone was found in a yellow
colour cloth bag carried by accused No.2. It is the case of the

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prosecution that the investigation revealed the trace of the drugs to
accused No.3. The prosecution mainly relied upon the whatsapp
chats of the alleged drug dealings between accused Nos.1 and
accused No.3. It is the case of the prosecution that considering the
fact that quantity of the drugs recovered is a commercial quantity,
rigours of Section 37 of the NDPS Act would equally apply against
accused No.3, because he was part of the conspiracy.

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6.In order to appreciate the rival submissions for the
purpose of deciding the bail application, I have perused the material.
The Whatsapp messages retrieved from the mobile phone of the
accused No.1 are part of record. A perusal of those messages prima
facie indicates that the accused No.3 had no direct talk or dealings
with accused No.1. The mobile phone of accused No.3 was seized
and it was sent to FSL for analysis. The FSL report is dated
29/11/2023. A perusal of the report shows that the mobile phone
was analysed but the deleted data could not be recovered. It is
opined that the sim card did not have facility to store chats and
multimedia. It is therefore apparent that the whatsapp chats from

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the mobile phone of the accused No.3 could not be recovered. In my

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view for the purpose of deciding the bail application, the report of
analysis of the mobile phone cannot be overlooked.

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7.It is further seen that complicity of accused No.3 is

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sought to be established on the basis of the statement of the co-
accused. The statement of the co-accused is not legally admissible
piece of evidence. The perusal of Whatsapp chats recovered from
the mobile phone of accused No.1 does not prima facie indicate that
the accused No.3 directly dealt with the accused No.1 for the
transaction of purchase or sale of narcotic drugs. It is undisputed
that father of accused No.3, as per the case of the prosecution was
dealing in narcotic drugs. He was arrested in one case in State of
Madhya Pradesh in the month of August-2021. The last contact
established on the basis of Whatsapp chat with accused No.3 was in
May-2021. At that time father of accused No.3 was not arrested.
The Whatsapp chat would indicate that accused No.3 on receipt of
the call or message replied stating that he would convey the
information or message to his father. In my view therefore, for the
purpose of deciding bail application this material needs to be taken
into consideration. Consideration of this material in totality would

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indicate that at this stage prosecution has not made out a case to
invoke rigours of Section 37 of the NDPS Act against accused No.3.
In the teeth of such weak evidence against accused No.3 he cannot
be kept behind bars for indefinite period. The apprehension put-
forth by the learned APP can be taken care of by imposing
appropriate conditions.

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8.In view of above, I conclude that the accused has made
out a case for release him on bail. Hence, following order:-

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(i) The application is allowed;

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(ii)The Applicant -accused No.3-Shoaib Ayub

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Sikrawa, be released on bail in C.R. No.55
of 2021 registered with Anti Narcotic Cell,
Bandra Unit, Mumbai, for the offences
punishable under Section 8(c) r/w Sections
21(c), 22(c), 27(a) and 29 of the Narcotic
Drugs and Psychotropic Substances Act,
1985, on his furnishing P.R. Bonds in the
sum of Rs.50,000/- (Rupees Fifty Thousand
only) with one or two solvent sureties in

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the like amount.

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(iii) The Applicant shall not directly or
indirectly tamper with the prosecution
evidence.

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(iv) The Applicant shall not pressurise, threaten

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or induce the prosecution witnesses directly
or indirectly.

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(v) The Applicant shall attend Anti Narcotic Cell, Bandra Unit, Mumbai, on the first day

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of every month till completion of the trial.

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9.It is made clear that observations made herein above be

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construed as expression of opinion only for the purpose of granting
bail and the same shall not in any way influence the trial Court.

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10.The application stands disposed of in above terms.

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Megha

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Shoaib Ayub Sikrawa v. Anti Narcotics Cell and Anr.

Case brief

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Shoaib Ayub Sikrawa v. Anti Narcotics Cell and Anr.

Case brief

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