Riyal vs Narcotics Central Bureau

Alok Verma, J.—Case diary is available, arguments heard.

This is second bail application filed by the applicant under section 439 of the Code of Criminal Procedure for grant of bail. The first application was dismissed as withdrawn in M.Cr.C. No. 8905/2014 dated 08.01.2015.

The present applicant was arrested by the Police Station Narcotics Control Bureau, Indore (hereinafter referred to as "NCB"), District Indore in Crime No. 02/2009 under sections 8/21, 29 and 27-A of N.D.P.S. Act.

According to the prosecution story, on 21.05.2009, Shri Sunil Kumar Gupta, Narcotics Control Bureau, Regional Office, Indore received an information from Shri S. Gunabalan, Superintendent, NCB, Chennai that Mohd. Riyal R/o Shrilanka is undergoing sentence in Chennai Jail and he is involved in smuggling of Heroine to Shrilanka with his companions. Mohd. Riyal purchased 2 kg Heroine from Mohd. Umar @ Salim who was undergoing sentence in Chennai Jail, has been released on bail and the said Heroine will be delivered by Mohanlal @ Vikas R/o Pratapgarh on 21.05.2009 to a person named Sarwanan who is staying in Vikram Hotel, Ujjain. Hence on the basis of this information, raid party was arranged. On 21.05.2009 in the presence of independent witnesses, Sarwanan was intercepted in Vikram Hotel, Ujjain. He was having a bag in his hand. He was apprised with the information of the informer and after obtaining his due consent, he was searched and in the bag in his left hand, four packets were found which contained Heroine and on weightment, 2 kg Heroine without the weightment of bags was seized which was sealed as per procedure and samples were prepared and sealed. During investigation, Sarwanand informed in his statement that he was supplying the Heroine for Mohd. Riyal who is in jail at Chennai Jail and he was to receive Rs.30,000/- in lieu of the supply. He also informed that he was having a mobile phone bearing no.9962817784 which was used for the smuggling and Mohd. Riyal also paid Rs.10,000/- for expenses, hence he was arrested.

Thereafter, on 29.05.2009, an information was received that Mohd. Umar @ Salim S/o Ahsan Mohd. who was involved in case no.02/2009 was going to Chennai. On 30.05.2009, he was intercepted at Bhopal Railway Station in Jaipur - Chennai Train. A summon under section 67 of the NDPS Act was given to him. Thereafter, he presented himself on 30.05.2009 and his statement was recorded. In his statement, he admitted that he is involved in smuggling of Heroine since the year 1998 and facing trial in the case of seizure of 32 kg Heroine in the Court of NDPS, Mandsaur and after remaining for seven months in jail, he has been released on bail. Thereafter, he was an accused in case of 20 kg Heroine in the year 2000 in Chennai and he was in jail for either years and three months and was released on 04.03.2009. He also informed that in Chennai, he came in the contact of Mohd. Riyal, but after his release from jail, he did not meet him and he does not know Mohanlal @ Vikas R/o Pratapgarh and Sarwanan. He does not know why Sarwanan has named him. As present applicant Mohd. Umar did not co-operate in investigation and did not give any self incriminating statement, hence he has been arrested in this case.

Under this factual background, this application filed on the ground that the present applicant was in jail at the time when it is alleged that he got delivery of the contraband. The co-accused Mohammad Umar was granted bail by this Court on 01.02.2011. There is no recovery from the present applicant and there is no statement under section 67 of NDPS Act of the present applicant. The applicant is in jail for the last 5 years and 5 months. The trial of the case will take time and, therefore, it is prayed that with stringent conditions, he may be granted bail. Along with application, the applicant has filed the copies of the order-sheet which shows that the matter is held up before the trial Judge, as the record of the case has been requisitioned by this Court for disposal of pending a revision in compliance of requisition dated 29.11.2012. He has also filed judgments and various cases which were pending against the present applicant. According to the counsel for the applicant in most of the cases he has been acquitted by the Court.

The NCB filed a written reply to the application and objects on the ground that the trial is in its advance stage, the same is help up because the present applicant himself filed a revision and requisitioned the record to this Court. The NCB also apposes the application on the ground that there are many applications pending against the present applicant and he is an international smuggler. As it is apparent from the statement given by both the co-accused under section 67 NDPS Act.

Learned counsel for the applicant places reliance of judgment of Hon'ble Supreme Court in Maulana Mohammed Amir Rashadi vs. State of Uttar Pradesh, in which the petitioner who was an MLA from Uttar Pradesh was granted all/ oil by the High Court in a case under section 302 IPC and where it was alleged that there were many cases pending against the petitioner and there were also allegation of threatening the complainant of the case. The Hon'ble Supreme Court, however, refused to interfere in an appeal filed against the order granting bail to the petitioner on the ground that High Court while granting the bail imposed several conditions for strict adherence during the period of bail, trial of the case was commenced etc.

As against this, the learned counsel for the NCB cited judgment of Hon'ble Supreme Court in Babua @ Tajmul Hussain vs. State of Orissa, in which it was held that where the accused was arrested on the basis of statement recorded under section 67 NDPS Act of the coaccused, 9 witnesses were examined and it was claimed that none of the witnesses have implicated the petitioner. The Hon'ble Apex Court refused to grant bail in such situation.

Reverting to the present case the facts and circumstances of the present case are similar to the case of Babua @ Tajmul Hussain (supra), in this case the trial of the case is in its advance stage, however, trial is merely held up as the original record has been requisitioned for disposal of revision filed by the applicant. This apart, there are statement of both the co-accused implicating the present applicant. Taking all these factors into consideration in considered view of this Court, no case is made out for grant of bail at this stage. Accordingly, the application is dismissed.

Before parting with the order, it is further directed that the office may find out whether the original record of the case Special Sessions Trial No. 07/2009 pending before the Special Judge under NDPS Act, Ujjain is requisitioned and lying before the Court, if that be so, the concerning revision may be listed before the appropriate Bench under the category "held up cases" with request to the concerning Bench to dispose of the case finally or if, such an early disposal is not possible, then record may be sent back with permission of the appropriate Bench to the trial Judge for expeditious trial of the matter. The learned trial Judge is further directed to conclude the trial as expeditiously as possible and not later than four months after receiving of record of the case.

With that direction and observation, this M.Cr.C. stands disposed of.