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2024 DIGILAW 399 (GUJ)

Fatema Moiz Sayarawala v. State Of Gujarat

2024-02-28

DIVYESH A.JOSHI

body2024
JUDGMENT : 1. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent-State. 2. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with the FIR registered at D.R.I. Gandhidham File No.DRI/AZU/GRU/NDPS-3/2022 of the offence punishable under Sections 21(c), 23(c), 25, 27, 27A, 27B, 28, 29,30, 31, 31A , 32, 32B(c), 32B(e) read with Section 8(c), 8A of the Narcotic Drugs & Psychotropic Substances Act, 1985 and Rule 53, 54 and 55 of the Narcotic Drugs & Psychotropic Substances Rules, 1985 and Section 120B of the Indian Penal Code. FACTUAL MATRIX 3. The complaint was filed by the Senior Intelligence Officer of the Directorate of Revenue Intelligence (henceforth “DRI”), Gandhidham Regional Unit, Plot No.193, Sector-4, Gandhidham stating that following the inputs received by the DRI regarding one import consignment under IGM No.2311391 dated 12.05.2021, suspected to have some restricted or prohibited goods, the container was put on hold by the DRI at Mundra port vide communication dated 21.05.2022. 4. Then between 24.05.2022 and 26.05.2022, the officials of the DRI raided at the place of Mundra port where the consignment was lying. The raiding team comprised of Shri Vikram Meena (Seizing Officer), two independent Panchas, representative of CFS & Shipping line, namely, Shri Shashidharan Nair (Manager (Operations), M/s Speedy Multimodes Warehousing Corporation (CWC) CFS, Adani Ports & SEZ, Mundra and Shri Bharat Himmatlal Parmar, Branch Manager, M/s. Sea Care Shipping P. Ltd., Gandhidham. 5. The Intelligence Officer then introduced himself to the person present over there and acquainted them about the illegal contraband substance lying in the consignment and informed them about the search to be carried out in presence of two independent Panch witnesses. 6. After that, the goods destuffed from the container and sent the same in the godown for detailed examination. However, before shifting the bags to the godown, each bag was being weighed by the officer which was found to be exactly of the same weight as was written/disclosed on the bag. During such process, just to know the colour, texture and odour/smell of the goods filled in the bag, each of the bags were incised from the middle. 7. During the course of weighment, one bag was found to be of lesser weight, i.e., 17.980 kg against the weight mentioned on the bag, i.e, 25 kg. During such process, just to know the colour, texture and odour/smell of the goods filled in the bag, each of the bags were incised from the middle. 7. During the course of weighment, one bag was found to be of lesser weight, i.e., 17.980 kg against the weight mentioned on the bag, i.e, 25 kg. Which created suspicion in the mind of the officers, and as such, they decided to separate the said bag from other bags. After that, four more bags were found to be lesser in quantity against the weight mentioned on the respective bags and, therefore, they were kept separate in the godown. Thus, total five bags were found under suspicion. 8. Then the said five bags were brought for examination. The bag weighing 17.980 kg was first incised from the middle portion which was found to have coarser powder of brownish colour and was also found to be having pungent smell different than the cargo of rest of the bags under examination. Upon such process being followed on each of the five bags, total three bags were found to be having the same coarser powder. As the officers present found those three bags to be of suspicious nature, they decided to ascertain the identification of the said goods by using the Drug Detection Kit, and after preliminary testing, the samples were tested positive for psychotropic substance heroin which was also confirmed by the FSL. The said narcotic substance weighing 54.488 kg was then seized by the intelligence officer and complaint came to be registered, pursuant to which, later the applicant-accused was arrested. Earlier proceedings:- 9. The applicant-accused approached the Sessions Court by filing an application under Section 439 of the Cr.P.C. for regular bail being Criminal Misc. Application No.1542 of 2022 which was nixed by the 3rd Additional Sessions Judge & (Special NDPS Court), Bhuj-Kutch by its order dated 07.01.2023 which gives rise to the filing of the present application. Contentions on behalf of the applicant-accused:- 10. Learned advocate Mr. Suhail Saiyed appearing for the applicant has submitted that the applicant-accused is an innocent lady, aged about 40 years languishing in jail since her arrest on 30.05.2022. Learned advocate Mr. Saiyed has further submitted that the present application is at the post-charge- sheet stage as the investigation has already been completed. Learned advocate Mr. Suhail Saiyed appearing for the applicant has submitted that the applicant-accused is an innocent lady, aged about 40 years languishing in jail since her arrest on 30.05.2022. Learned advocate Mr. Saiyed has further submitted that the present application is at the post-charge- sheet stage as the investigation has already been completed. It is submitted that the applicant-accused has been falsely implicated in the present offence and he has nothing to do with the narcotic substance recovered from the consignment. It is moreso submitted that a table salt was imported in the name of the accused No.1 and the applicant-accused has been shown as accused No.2. Learned advocate Mr. Saiyed has further submitted that during the period between 24.05.2022 and 26.05.2022, a raid was carried out at the residence of the applicant-accused and the statements of the applicant-accused as well as her husband also came to be recorded during the course of interrogation, however, nothing incriminating was found against the applicant-accused. It is also submitted that the indictment against the applicant-accused is that she has aided and abetted the accused No.1 in bringing the contraband substance into India by submitting her credentials before the customs and excise authorities as well as to the other relevant government agencies. It is further submitted that initially some dry foods/ dates were to be imported from Iran, for which, actually the applicant-accused was supposed to get Rs.50,000/- as commission and not Rs.1,00,000/- as shown by the investigator. It is submitted that except the present transaction, the applicant-accused had never indulged in any import and export activity. She agreed for the said deal as she was told by the main accused stationed at Dubai that some dry foods and dates would be imported, however, subsequently the commodity was replaced and a huge cache of salt along with the contraband article was sent by the main accused, for which, the applicant-accused did not have any personal knowledge. Learned advocate Mr. Saiyed would further submit that when the applicant-accused was informed by the main accused at the last moment about import of salt instead of dry foods, the applicant-accused resisted to the same which is evident from the whats-app chats collected by the investigator during the course of investigation. She was completely unaware about the ill-intention on the part of the other accused who is stationed at Dubai. Learned advocate Mr. She was completely unaware about the ill-intention on the part of the other accused who is stationed at Dubai. Learned advocate Mr. Saiyed further submits that the contraband substance was recovered from one consignment and not from the conscious possession of the applicant-accused. Nothing incriminating was even found from the residence of the applicant-accused. The applicant-accused did not have any knowledge about such illegal trafficking of contraband heroin and was not at all part of any conspiracy. The only allegation against the applicant- accused is that she has provided her credentials before the concerned customs authorities as the recipient of the consignment completely unaware about the narcotic substance being sent along with the salt. Even before registration of the complaint, on number of occasions, she was called upon by the office of the revenue intelligence, and on every occasion, she remained present before the authority and disclosed all the information she was having. Learned advocate Mr. Saiyed has further submitted that if of the applicant-accused was one of the co-conspirators and her intention was to illegally trafficked the contraband substance into India, in that event, she would not have submitted her original documents before the various government authorities. It is moreso submitted that the applicant-accused is an innocent lady who has been made a scapegoat by the main accused sitting outside India. She is having two minor children to be looked after. Further, she does not have any past criminal antecedents. To substantiate his submissions, learned advocate Mr. Saiyed relies upon the following decisions; (i) In the case of Bharat Chaudhary vs. Union of India, reported in (2021) 20 SCC 50 ; (ii) In the case of State (By NCB) Bengaluru vs. Pallulabid Ahmad Arimutta & Anr., reported in (2022) 12 SCC 633 ; 11. In such circumstances, referred to above, learned advocate Mr. Saiyed prays that there being merit in his application, the same be allowed and the applicant -accused may be enlarged on bail on any suitable terms and conditions. Contentions on behalf of the complainant:- 12. The present bail application has been vehemently opposed by learned advocate Mr. Chirayu Mehta appearing for the respondent No.2-original complainant. He submits that the specific role of the present applicant-accused is clearly coming out from the papers of the investigation. Contentions on behalf of the complainant:- 12. The present bail application has been vehemently opposed by learned advocate Mr. Chirayu Mehta appearing for the respondent No.2-original complainant. He submits that the specific role of the present applicant-accused is clearly coming out from the papers of the investigation. It is moreso submitted that the applicant-accused is not so innocent as has been projected by the learned advocate for the applicant. She has played a major role in the commission of the crime. Learned advocate Mr. Mehta would further submit that before arrival of the consignment in India, the applicant-accused was completely aware about what was imported in India which is evident from her statement recorded by the intelligence officer wherein she has clearly stated that she knew that the commodity was changed and instead of dry dates, salt would be coming in India and to enable the other perpetrators to bring such contraband substance in India along with the salt, she provided her credentials before the concerned government authorities. If the applicant-accused would not have provided her credentials and KYC, it was not possible for the other perpetrators sitting outside India to bring that consignment into India containing narcotic substance. Therefore, it can safely be said that the present applicant-accused has actively participated in the commission of the crime. She facilitated the foreign-based drug smugglers in supplying the narcotic drugs in India by providing necessary documents only with a view to gain some personal monetary benefits. The quantity of the psychotropic substance heroin involved in the present case is 54.488 kg which is commercial in nature and, therefore, rigors of Section 37 of the NDPS Act would be attracted. The applicant-accused has committed a heinous offence for her enrichment which is detrimental to the social health of the society more particularly the youth. It is further submitted that in the present case the examination of the witnesses has yet not be commenced and, therefore, if the applicant-accused is set at liberty at this stage, there are all possible chances of tampering with the prosecution witnesses/evidences. 13. In such circumstances, referred to above, learned advocate Mr. Mehta prays that there being no merit in the present application, the same be rejected. Analysis 14. The rival contentions raised on behalf of both sides have been heard and material on record has been perused. 15. 13. In such circumstances, referred to above, learned advocate Mr. Mehta prays that there being no merit in the present application, the same be rejected. Analysis 14. The rival contentions raised on behalf of both sides have been heard and material on record has been perused. 15. After hearing arguments and going through the case papers, this Court is of the opinion that the recovery in this case of heroin i.e. psychotropic substance is of about 54.488 kg which is a commercial quantity, therefore, bar of Section 37 of NDPS Act is attracted in the present case. However, it is contended that though a huge commercial quantity of contraband article heroin is recovered in the present case, still looking to the facts and circumstances of the case as well as the role attributed to the present applicant-accused, the embargo of Section 37 of NDPS Act should be dispensed with in favour of the applicant-accused. 16. As regards the law under Section 37 is concerned, it will be apt to refer to the observations of the Hon'ble Apex Court in Narcotics Control Bureau v. Mohit Aggarwal, reported in 2022 SCC OnLine SC 891, which read as under: “10. The provisions of Section 37 of the NDPS Act read as follows: “37. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974)- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless - (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of subsection (1) are in addition to the limitations under the Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail. **** 14. (2) The limitations on granting of bail specified in clause (b) of subsection (1) are in addition to the limitations under the Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail. **** 14. To sum up, the expression “reasonable grounds” used in clause (b) of Sub-Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail.” (Emphasis supplied) 17. The Hon'ble Supreme Court in case of State of Kerala v. Rajesh, reported in (2020) 12 SCC 122 had observed the following in relation to exercise of power under Section 37 of the Act by Courts: "20. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC, but is also subject to the limitation placed by Section 37 which commences with nonobstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. 21. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for..." 18. In the present case, the contention of the learned counsel for the applicant is that the only role attributed to the present applicant-accused is that she has provided her credentials and KYC details as well as the FSSAI license of her erstwhile firm for the import of the consignment completely unaware of the conspiracy of supplying the huge quantity of narcotic substance heroin in India through sea shipping and she was not found in conscious possession with the contraband substance. It is argued that the contraband substance was seized from the Mundra port and the present applicant accused has never paid visit to Mudra port. It is also argued that the applicant-accused has been falsely implicated in the present case only on assumption and presumption. The said contentions, in my opinion, do not inspire any confidence as it prima facie appears from the materials available on record that the present applicant-accused has actively participated or rather has played a major role in hatching the conspiracy along with the other co-accused persons some of which are foreigners to illegally import the contraband substance heroin from Iran to India through sea shipping in a concealed manner. More than a huge commercial quantity of contraband heroin has been seized by the raiding party from the place of offence. Further, there is an evidence in terms of some whats- app chats between the applicant-accused and the main supplier. She knew that instead of dry dates, salt was being sent in the consignment and when she knew about the same, why she did not decline to accept the same. Further, there is an evidence in terms of some whats- app chats between the applicant-accused and the main supplier. She knew that instead of dry dates, salt was being sent in the consignment and when she knew about the same, why she did not decline to accept the same. Further, when the large quantity of salt being manufactured and exported to various countries from India, what was the need for the applicant-accused to import salt from Iran. Therefore, from the entire chain of events, it appears that the present applicant- accused is actively involved in the commission of the offence since very beginning. 19. The quantity of heroin recovered in the present case is commercial in nature. Though the Court has to be conscious of the right of the accused to speedy trial and personal liberty, when the same is weighed in the weighing scale of the offence she is alleged to have committed and its larger repercussions on younger generation, their families and their future, the offence committed by her against which there is a strong suspicion has to give way to her right of personal liberty. Right to personal liberty is subject to restrictions by the State in case of criminal offences for the larger good of the public and their safety. The target groups of the drug supply are younger generation. 20. Though the absence of reasonable suspicion is significant in assessing as to whether the accused will be entitled to bail or not, the presence of reasonable and grave suspicion will justify rejection of bail depending on the facts of each case. The credibility of the witnesses and admissibility of evidence cannot be gone into at this stage by this Court in face of the material before it produced by the prosecution after conducting extensive investigation. The gravity of the offence is one determinative factor while deciding a bail application. The magnitude and extent of the illicit drug trade and its severe impact on the lives of the consumers also have to guide the Court regarding severity of the offence. 21. What amounts to “conscious possession” was also considered in Dharampal Singh v. State of Punjab, (2010) 9 SCC 608 , where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. 21. What amounts to “conscious possession” was also considered in Dharampal Singh v. State of Punjab, (2010) 9 SCC 608 , where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. In Mohan Lal v. State of Rajasthan, reported in (2015) 6 SCC 222 the Hon’ble Supreme Court also observed that the term “possession” could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on this knowledge. 22. As regards the contention raised regarding absence of recovery of the contraband from the possession of the applicant-accused, this Court has noticed that in Union of India v. Rattan Mallik, (2009) 2 SCC 624 , a two-judge Bench of the Hon’ble Supreme Court cancelled the bail of an accused and reversed the finding of the High Court, which had held that as the contraband (heroin) was recovered from a specially made cavity above the cabin of a truck, no contraband was found in the ‘possession’ of the accused. The Court observed that merely making a finding on the possession of the contraband did not fulfill the parameters of Section 37(1)(b) and there was non-application of mind by the High Court. 23. In line with the decision of the Hon’ble Supreme Court in Rattan Mallik (supra), I am of the view that the mere ground of absence of conscious possession of the contraband article from the applicant-accused does not absolve the applicant of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act. 24. In light of the above discussion, this Court is of the opinion that taking in view the entire facts, circumstances and the material placed before this Court, at this stage, no ground for bail is made out against the present accused/applicant. 25. Accordingly, the present application stands dismissed. Rule is discharged.