JAKU DAUD BUCHAD 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"). BRIEF BACKGROUND

(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. 2.1 Acting upon such tip-off, a combined team of A.T.S. officers and the coastguard police of Jakhau Port was formed.

(3.) Learned advocate Mr. Ashish Dagli representing the applicant-accused has submitted that the applicant-accused was arrested on 26/3/2023 and since then he is in jail. Learned advocate Mr. Dagli 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. Dagli 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, his boat was used by the other accused persons for getting the delivery of 15 kg heroin supplied from Pakistan by the very same person, namely, Mustufa Aiyub Miyana. It is also 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 has also been submitted that the present applicant-accused is an illiterate person indulged in fishing business. Learned advocate Mr. Dagli further submitted that in the earlier incident, the boat of the applicant-accused was being taken on rent by the accused persons at the behest of the brother-in-law of the applicant, namely, Kader Siddiq Kakkal and not directly from the applicant-accused which is revealed from the statement of Kader Siddiq Kakkal recorded on 23/3/2023 by the police. It is moreso submitted that the only allegation against the present applicant-accused is that he rented his boat to the main accused persons in the year 2021 for committing the similar kind of offence. It is submitted that the present applicant-accused is an ill-omen person who has been booked in the present offence just because earlier he rented his boat and accompanied the main accused persons into the mid-sea fully unaware about the ill-intention on the part of those accused persons. Learned advocate Mr. Dagli has further submitted that except the allegation of providing his boat to the other accused persons in the earlier dealing, no specific role is attributed to the present applicant-accused. 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. Dagli 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 Toofan Singh v. State of Tamil Nadu, AIR 2020 SC 5592;