Kuruvilla Omen Cherian vs State of Maharashtra

Applicant by the present Application filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 (“ BNSS ” for short), is before this Court seeking regular bail in connection with Crime No. 411 of 2023 registered with Ravet Police Station, District-Pune for the offences punishable under Sections 8(c), 20(b)(ii)(b), 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act” for short).

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Mr. Taraq Sayed, learned Advocate for the Applicant submits that the abovesaid crime is now registered as Special Case No. 32 of 2024 and is pending on the file of learned Additional Sessions

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Gitalaxmi

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903-BA-4775-2024.doc

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Judge, Vadgaon, District-Pune.

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There are 7 accused persons in the present crime. Applicant is Accused No. 2.

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First Information Report was lodged by Vijay Rangnath Nalage, Police Hawaldar, Anti Extortion Branch, Crime Branch, Primpri-Chinchwad. As per the FIR, Mephedrone weighing about 1100 grms., worth Rs. 4,000/- per gram, Ganja weighting about 1100 grms. and three mobile handsets etc., were found in possession of Mohsin Mohammad Khan (Accused No. 1). At the time of seizure, Accused No. 1 stated that he obtained the contraband from Deepak Suryawanshi alias Kolya. During investigation, it transpired that Deepak Suryawanshi alias Koyla is Kuruvilla Omen Cherian (Applicant).

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Applicant (Accused No. 2) was arrested on 20^th December 2023 and since then he is in jail. Bail Application at Exhibit-41 in Special Case No. 32 of 2024 filed by the Applicant was rejected by the learned Additional Sessions Judge, Vadgaon, District-Pune by order dated 1^st October 2024.

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Mr. Taraq Sayed, learned Advocate for the Applicant submits that the involvement of Applicant is on the basis of the statement made by Accused No. 1 in the present crime. He submits that the statement made by Accused No. 1 is inadmissible, as it is hit by the provisions of Section 67 of the NDPS Act. He submits that the Applicant was not found in possession of any contraband. He submits that except for the present Applicant and Accused No. 1, all other accused persons in the present crime are released on bail. Page 2 of 6

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Gitalaxmi

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He submits that though prosecution alleges communication between the Applicant and Accused No. 1, the sim card or the phone of the Applicant, used as a mode of communication with the Accused No.1, is not attached. He therefore submits that though the subject matter of the present crime is a commercial quantity, rigors of Section 37 of the NDPS Act, would not apply to the case of Applicant, as whatsapp chats without any corroboration for the involvement or complicity of Applicant, cannot be relied upon. He submits that the Applicant does not have any criminal antecedents.

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Mr. Tanveer Khan, learned A.P.P. for the State/Respondent submits that the material on record clearly indicates the involvement of the Applicant in the crime. He relies upon the panchanama prepared by the Investigating Team, wherein the Accused No. 1 is stated to have named the Applicant. According to him, the whatsapp chats retrieved from the mobile phone of Accused No. 1 contain conversations as well as audio recordings exchanged between the Applicant and Accused No. 1. He also submits that videos depicting the preparation or mixing of the contraband were recovered from the hard disk of the said mobile phone, which was recovered at the instance of Accused No. 1. He submits that three mobile phones were seized from the Applicant, which contain certain videos and photographs related to the contraband.

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I have perused the records with the assistance of learned Advocates of the parties.

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The charge-sheet filed in the present crime reveals that the

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prosecution has sought to establish a connection between Accused No. 1 and the Applicant by relying on whatsapp chats, calls, and other related data retrieved from the mobile phone of Accused No. 1. While the whatsapp chats on the said device reflect the mobile number allegedly belonging to the Applicant, it is pertinent to note that neither the Applicant’s mobile phone nor the corresponding sim card has been recovered. Furthermore, although three mobile phones were seized from the Applicant, none of them contain any data indicating whatsapp communication either in the form of messages or calls between the Applicant and Accused No. 1.

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Mr. Tanveer Khan, learned A.P.P., submits that the whatsapp chats retrieved from the mobile phone of Accused No. 1 suggest certain bank transactions between the Applicant and Accused No. 1. However, when specifically queried by the Court as to, ‘whether there is any material on record evidencing such monetary transactions between the two?’, Mr. Tanveer Khan, fairly states that no such material is available.

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The Hon’ble Supreme Court in the case of Bharat Chaudhary v/s. Union of India¹ , has held that reliance on the printouts of whatsapp messages downloaded from the mobile phone, cannot be treated as sufficient material to establish a live link between the accused persons.

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In the above circumstances, implication of the Applicant in the present crime appears to be solely based on the statement made by Accused No. 1, which in light of the judgment of the

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1 2021 SCC OnLine SC 1235.

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Hon’ble Supreme Court in Tofan Singh v/s. State of Tamil Nadu² , is inadmissible in trial of an offence under the NDPS Act.

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Material on record neither indicates Applicant to be in possession of the alleged contraband nor there is money trial established. Whatsapp chats, without any corroboration for the involvement or complicity, cannot be relied upon. In such circumstances, prima facie there are reasonable grounds for believing that the Applicant is not involved in the said offence. Thus, rigors of Section 37 of the NDPS Act would not apply.

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In the above facts of the case, the Applicant is entitled for bail. Hence, the present Bail Application is allowed on the following conditions :-

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a. Applicant is directed to be released on bail in connection with Crime No. 411 of 2023 registered with Ravet Police Station, District-Pune for the offences punishable under Sections 8(c), 20(b)(ii)(b), 22(c) and 29 of the NDPS Act on executing P.R. Bond in the sum of Rs. 25,000/- (Rupees Twenty-five Thousand Only) with one or two sureties in the like amount to the satisfaction of the Additional Sessions Judge, Vadgaon, District-Pune.

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b. Applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with facts of accusation, so as to dissuade him from disclosing such facts to the Court or to any

2 (2013)16 SCC 31.

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police officer.

c. Applicant shall not tamper with the prosecution witnesses and evidence in any manner.

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d. Applicant shall co-operate in the conduct of the trial and shall regularly attend the hearing of Special Case No. 32 of 2024, pending on the file of learned Additional Sessions Judge, Vadgaon, District-Pune, on each and every date, unless exempted from appearance.

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e. Applicant upon his release, within a period of three days from his release, shall furnish his cell phone number and residential address with proof to the Investigating Officer, Ravet Police Station, District-Pune and shall keep the same updated, in case of any change thereto.

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Criminal Bail Application No. 4775 of 2024 stands disposed of in the abovesaid terms.

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[ASHWIN D. BHOBE, J.]

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GITALAXMI KRISHNA KOTAWADEKAR

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Digitally signed by GITALAXMI KRISHNA KOTAWADEKAR Date: 2025.07.15 16:29:12 +0530

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Gitalaxmi

Kuruvilla Omen Cherian v. State of Maharashtra

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Kuruvilla Omen Cherian v. State of Maharashtra

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