Allowed

Shaikh Aslam Shaikh Ismaile Alias Aslambaba Ganjawala v. State of Maharashtra and Anr.

Bombay HC20 Mar 2024BA/1219/2023

Case brief

AI extract

What is this about?

In batch bail application under Section 439 CrPC regarding NDPS charges, the High Court allowed bail. The court held that Section 37 of the NDPS Act did not apply due to insufficient evidence linking the applicant to cannabis ownership and granted bail with an impounding condition.

What did the court decide?

Released on bail by furnishing surety bond with one or two solvet sureties, subject to stringent reporting and location restrictions.

Shaikh Aslam Shaikh Ismaile Alias Aslambaba Ganjawala Vs… — Narcotics (NDPS) | Bombay HC (2024)

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4-BA-1219-2023.DOC

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2024:BHC-AS:14232

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL BAIL APPLICATION NO.1219 OF 2023

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Shaikh Aslam Shaikh Ismaile alias Aslambaba …Applicant
Ganjawala

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Versus

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The State of Maharashtra & Anr. …Respondent

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Mr. Santosh T. Pandey (through Video Conference) a/w. Ms. Kajal
Upadhyay, Ms. Anima Mishra and Mr. Anuj Singh i/b. SBG Laws,
Advocates, for the Applicant.

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Mr. Shriram S. Chaudhari, APP, for the Respondent-State.
Mr. Sujit Surendra Patil, P.S.I., Malegaon Taluka Police Station
present.

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CORAM:MADHAV J. JAMDAR, J.
DATED :20th MARCH 2024

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PC:-

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1. Heard Mr. Pandey, learned Counsel for the Applicant and Mr.

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Chaudhari, learned APP for the Respondent-State.

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2. This regular Bail Application is preferred under Section 439

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of the Code of Criminal Procedure, 1973. The relevant details are
as follows:-

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`1.C. R. No.`	`341 of 2022`
`2.Date of registration of F.I.R.`	`15/06/2022`
`3.Name of Police Station`	`Malegaon Taluka Police` `Station, District-Nashik`

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Page 1 of 11

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Sonali

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4-BA-1219-2023.DOC

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`4.Section/s invoked in F.I.R.`	`22(c), 20, 29 and 25 of the` `NDPS Act, 1985`
`5.Section/s invoked in Charge-` `sheet`	`8(a), 20(a), 22(a), 25 and 29` `of the NDPS Act, 1985`
`6.Date of incident`	`14/06/2022`
`7.Date of arrest`	`19/08/2022`
`8.Date of filing of Charge-sheet`	`21/10/2022`

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3.As per the prosecution case, the Police officials received
information on 14th June 2022. The police officials went to the
room situated in agricultural field owned by Gurunanak Bhagwan
Temple Trust, Tokde for searching the Accused persons of another
C.R. No.63 of 2022 registered under Section 307 read with 34 of
the Indian Penal Code, 1860. At that time, Accused Nos.1 and 2
were found. In the said room, police found 17 plastic gunny bags
containing Ganja. The quantity of said Ganja was 480 kgs 910
grams. The said room belong to the said Trust and Accused No.1 is
a trustee of the said Trust. The Accused Nos. 1 and 2 informed the
police officials that said Ganja belonged to the present Applicant
i.e. Accused No.3 and that it was given to them for storing in the
said room. As per the prosecution case, the said Ganja was to be
given to Accused No.4 who is the absconding Accused. There are

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Page 2 of 11

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Sonali

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4-BA-1219-2023.DOC

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about 56 phone calls between the present Applicant i.e. Accused
No.3 and Accused No.4 from 10th April 2022 to 14th June 2022.

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4.Mr. Pandey, learned Counsel for the Applicant submitted that

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as per the prosecution case, there are only two circumstances
against the present Applicant that the Accused Nos.1 and 2
informed that said Ganja belongs to the Applicant and that there
are 56 phone calls between the present Applicant and the Accused
No.4. He submitted that there is no role attributed to the said
Accused No.4. He further submitted that there is no material on
record to show that the cell phone number from which the calls
were made between the present Applicant and the Accused No.4
belongs to the Applicant. He submitted that there is no other
evidence except the statement of Accused Nos.1 and 2 that the said
Ganja belongs to the Applicant.

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5.Mr. Pandey, learned Counsel for the Applicant submitted that
there is one more case in which F.I.R. contains the same allegation
and the learned Sessions Judge has granted Anticipatory Bail. He
pointed out said Order dated 12th July 2016 passed by a learned
Additional Sessions Judge, Malegaon below Exhibit-1 in Criminal

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Page 3 of 11

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Sonali

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4-BA-1219-2023.DOC

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Bail Application No.295 of 2016. Paragraph No.5 of the same reads
as under:-

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“5. From perusal of first information report, it transpires that, name of applicant is stated by coaccused Muzakir Zakir Mansuri, and except that, there is no material against the applicant at this moment. Moreover, it is not appropriate at this stage to comment upon the merits of the case, and thus, without commenting upon the merits, I am of the considered view that the applicant scrupulously followed the conditions and appeared before the Investigating Officer. Thus, he has not abused the liberty granted to him vide interim order dated 05.07.2016. In addition thereto, the applicant associated himself, with the investigation. Hence, I pass the following order…..”

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6.Apart from that, Mr. Pandey, learned Counsel for the
Applicant pointed out another Order dated 8th April 2022 passed
by a learned Additional Sessions Judge, Malegaon in Criminal Bail
Application No.132 of 2022 and particularly paragraph No.6 of the
said order, which reads as under:-

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“06] Perused the charge-sheet. It appears that the investigation is completed. Charge-sheet is filed. As mentioned supra, charge sheet does not contain the confession statement made by the co-accused to show that applicant/accused is the owner of the seized Cannabis. It is admitted fact that accused were not found with any Cannabis. Charge-sheet is totally silent about the ownership of Cannabis. The

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Sonali

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4-BA-1219-2023.DOC

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police remand of accused No.1 and 2 was extended
on request of prosecution on the ground of
collecting the evidence regarding the ownership of
Cannabis. However, it appears that there is no any
single document in the charge-sheet, which shows
that the applicant/accused is the owner of the said
Cannabis. Learned A.P.P. and I.O. submitted that it is
a secret information to the police that
applicant/accused is the owner of the said
Cannabis, however, no such document is filed on
record. Under such circumstance, I am of the
opinion that applicant/accused is entitled for bail.
In result, I pass the following order…….”

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7.He submitted that as far as the antecedents are concerned,
the Applicant is acquitted in some of the cases. He submitted that
most of the cases are not under the Narcotic Drugs and
Psychotropic Substances Act, 1985 (“NDPS”) and the Applicant has
already been granted bail in those cases.

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8.On the other hand, Mr. Chaudhari, learned APP for the
Respondent-State strongly opposed the Bail Application. He
submitted that the Accused Nos. 1 and 2 informed the police that
the said Ganja belongs to the Applicant and there are 56 phone
calls made between the present Applicant and the Accused No.4 in
the crucial period of 10th April 2022 to 14th June 2022. He
therefore, submitted that there is incriminating material against
the present Applicant. He submitted that there are 7 antecedents

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Page 5 of 11

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Sonali

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4-BA-1219-2023.DOC

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against the present Applicant and therefore the bar under Section
37 of the NDPS Act is attracted.

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9.Perusal of the record shows that in the present case, the
incident in question occurred on 14th June 2022, F.I.R. was lodged
on 15th June 2022, the Applicant was arrested on 19th August 2022
and, Charge-sheet was filed on 21st October 2022. There is no
progress in the trial and even the charge is also not framed yet. As
per the Charge-sheet, there are 25 witnesses proposed to be
examined by the prosecution. The trial is unlikely to conclude any
time soon and is likely to take a considerably long time.

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10.Prima facie there is substance in the contention of Mr.
Pandey, learned Counsel for the Applicant that except the
statement of Accused Nos. 1 and 2 that the Ganja in question
belongs to the Applicant, there is no other evidence to substantiate
the said contention.

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11.Perusal of the record shows that the material against the
Applicant is the 56 phone calls between the present Applicant and
the Accused No.4. However, no role is attributed to the Accused

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Sonali

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4-BA-1219-2023.DOC

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No.4 in the Charge-sheet who is the absconding Accused. Except
the phone calls between the present Applicant and the Accused
No.4, no material is pointed out connecting Accused No.4 to the

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crime.

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12.As far as criminal antecedents are concerned, the details are

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as follows:-

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`Sr.` `No.`	`Police Station`	`C.R. No.`	`Sections invoked`	`Present` `Status`
`1`	`Malegaon City`	`132/2020`	`324, 323, 504, 506, 143,` `144, 147, 427, 160, 188,` `269, 270 of the I.P.C.,` `1860 3, 4 and 25 of the` `Arms Act, 1959`	`Pending in` `Court`
`2`	`Malegaon City`	`108/2020`	`324, 323, 504, 506 r/w.` `34 of the I.P.C., 1860`	`Pending in` `Court`
`3`	`Ramzanpura`	`II03/2020`	`12A of the Maharashtra` `Prevention of Gambling` `Act, 1887`	`Pending in` `Court`
`4`	`Azadnagar`	`II98/2017`	`12A of the Maharashtra` `Prevention of Gambling` `Act, 1887`	`Pending in` `Court`
`5`	`Azadnagar`	`155/2019`	`324, 323, 326, 504, 504` `r/w. 34 of the I.P.C.,` `1860`	`Pending in` `Court`
`6`	`Azadnagar`	`137/2016`	`20(b) and 22(c) of the` `NDPS Act`	`Pending in` `Court`
`7`	`Azadnagar`	`I 06/2017`	`326, 504, 506 r/w. 34 of` `the I.P.C., 1860`	`Pending in` `Court`

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Page 7 of 11

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Sonali

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4-BA-1219-2023.DOC

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It is clear that 4 antecedents are inter alia under Sections 324, 323,
326, 504 of the Indian Penal Code, 1860 (“I.P.C.”). Two
antecedents are under the Maharashtra Prevention of Gambling
Act, 1887 and one is under the NDPS Act. As far as the antecedent
under the NDPS Act are concerned, the Applicant has already been
granted bail therein. The reasons recorded by learned Additional
Sessions Judge, Malegaon in paragraph No.5 of the Order dated
12th July 2016 are already set out hereinabove.

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13.The reasons recorded hereinabove clearly show that the bar
under Section 37 of the NDPS Act will not apply to this case.

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14.However, Mr. Chaudhari, learned APP pointed out that there
is an externment Order dated 28th September 2021 passed by the
Sub-Divisional Magistrate, Malegaon Sub-Division, District-Nashik
by which the Applicant has been externed from Nashik district. He
submitted that therefore, if this Court is inclined to grant bail then
the Applicant be directed to stay outside the Nashik district. Mr.
Pandey learned Counsel appearing for the Applicant on
instructions states that as most of the offences are registered in
district Nashik, the Applicant will therefore not reside within

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Page 8 of 11

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Sonali

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4-BA-1219-2023.DOC

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District-Nashik and that the Applicant will reside at the residence
of his brother-Shaikh Azmal Shaikh Ismail at 80 footi Road, Baba
Nagar, Dhule.

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15. The Applicant does not appear to be at risk of flight.

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16. Accordingly, the Applicant can be enlarged on bail by

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imposing conditions.

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17. In view thereof, the following order:-

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O R D E R

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(a)The Applicant – Shailkh Aslam Shaikh Ismaile alias
Aslambaba Ganjawala be released on bail in
connection with C.R. No.341 of 2022 registered with
the Malegaon Taluka Police Station, Taluka -
Malegaon, District - Nashik on his furnishing P.R. Bond
of Rs.50,000/- with one or two local solventsureties
in the like amount.

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(b) The Applicant shall not enter the Nashik district after

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Sonali

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4-BA-1219-2023.DOC

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being released on bail, except for reporting to the
Investigating Officer, if called, and for attending the
trial.

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(c) 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.

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(d)The Applicant shall report to the Dhule City Police
Station, District - Dhule twice a week, on every
Monday and Thursday between 11.00 a.m. and 1.00
p.m. for six months and thereafter once a week on
every Sunday between 11.00 a.m. and 1.00 p.m. till
the conclusion of the trial. The Police Inspector of
Dhule City Police Station, District – Dhule to
communicate details thereof to the Investigating
Officer.

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(e) The Applicant shall not directly or indirectly make any inducement, threat, or promise to any person

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Sonali

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4-BA-1219-2023.DOC

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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.

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

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

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

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18.The Bail Application is disposed of accordingly.

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19.It is clarified that the observations made herein are prima

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facie, and the Trial Court shall decide the case on its merits
uninfluenced by the observations made in this order.

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[MADHAV J. JAMDAR, J.]

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Signed by: Sonali Patil Designation: PA To Honourable Judge Date: 22/03/2024 18:13:33

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Sonali

Shaikh Aslam Shaikh Ismaile Alias Aslambaba Ganjawala v. State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Shaikh Aslam Shaikh Ismaile Alias Aslambaba Ganjawala v. State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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