SULTAN HABIB LODHDA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present application is filed under Sec. 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No.III-02 of 2022 registered with the Anti-Terrorist Squad Police Station, Ahmedabad of the offence punishable under Ss. 8(c ), 21(c), 23(c), 25 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act").

(2.) The complaint was filed on 26/4/2022 through J.M. Patel, Police Inspector, Anti-Terrorist Squad, Ahmedabad stating that on 23/4/2022 Shri Bhavesh P. Rojiya, Deputy Superintendent of Police, received a secret information at 20:00 hours that one Mustufa Aiyub Miyana of Karachi Pakistan has supplied a huge cache of narcotic substance heroin in a rowboat called Al-Haj to be delivered to one person named Kali on 24/4/2022 between 22:00 and 24:00 hours in the night at Channel No.88 of VHF Radio which comes within the coastal territory of Jakhau Port, India, which narcotic substance would then be delivered to one Avtarsingh and Raj hailing from Okhla Vihar, South Delhi. The information was reduced into writing and forwarded to Shri Sunil Joshi, Superintendent of Police, A.T.S., Gujarat.

(3.) Learned advocate Mr. Nasir Saiyed representing the applicant-accused has submitted that the applicant-accused was arrested on 13/10/2022 and since then he is in jail. Learned advocate Mr. Saiyed has also submitted that in the present case, investigation has already been completed and charge-sheet has also been filed. It is moreso submitted that initially the first information report came to be lodged against in all total thirteen persons including four fugitives wherein the name of the present applicant-accused is not mentioned anywhere. However, subsequently, during the course of investigation, on the basis of the statement of the co-accused, the present applicant-accused has been implicated in the present offence by filing supplementary charge-sheet. Learned advocate Mr. Saiyed has further submitted that the present applicant-accused has been booked in the present case solely on the ground that earlier somewhere in the Month of November, 2021, he obtained the delivery of 15 kg heroin supplied from Pakistan by the very same person, namely, Mustufa Aiyub Miyana. It is also submitted that except that, no otehr specific role has been attributed to the present applicant-accused in the present offence. It is further submitted that the present applicant-accused was neither found in conscious possession with the contraband substance nor was caught by the police on the spot. Even the name of the applicant-accused is not there in the list of fugitive accused persons. It is moreso submitted that the only allegation against the present applicant-accused is that earlier in the yeare 2021, he obtained a delivery of 15 kg heroin from same person. Learned advocate Mr. Saiyed has further submitted that except the same, no other incriminating material is found agaisnt the applicant-accused connecting him with the present offence. The contraband substance was neither found from the conscious possession of the applicant-accused nor he was caught red-handed by the police along with the narcotic substance. Lastly, learned advocate Mr. Saiyed argued that the statement of other co-accused and the accused recorded under Sec. 67 of the NDPS Act is inadmissible and cannot be relied upon to implicate the applicant. To buttress this argument, he placed reliance on the judgement of Tofan Singh v. State of Tamil Nadu, AIR 2020 SC 5592;