2025:BHC-AS:15802
916.BA.4903.24 & 24.BA.825.25.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 4903 OF 2024
Riyazali Ahmed Khan .. Applicant
Versus
The State of Maharashtra .. Respondent
WITH
CRIMINAL BAIL APPLICATION NO. 825 OF 2025
Niyaz Shabbir Khan .. Applicant
Versus
The State of Maharashtra .. Respondent
....................
Ms. Rithika Yerra, Advocate i/by Mr. Anil Lalla for Applicant in Bail
Application No.4903 of 2024.
Mr. Kamlesh Satre a/w. Mr. Atul Sarpande and Mr. Pranay Saraf,
Advocates for Applicant in Bail Application No.825 of 2025.
Mr. Sukanta A. Karmakar, APP for Respondent – State in Bail
Application No.4903 of 2024.
Ms. Mahalakshmi Ganapathy, APP for Respondent – State in Bail
Application No.825 of 2025.
Mr. N.B. Chavan, PSI – ANC Azad Maidan Unit present
......…...........
CORAM : MILIND N. JADHAV, J.
DATE : APRIL 04, 2025.
P.C.:
1. Heard Ms. Yerra, learned Advocate for Applicant in Bail
Application No.4903 of 2024; Mr. Satre, learned Advocate for
Applicant in Bail Application No.825 of 2025; Mr. Karmakar, learned
APP for Respondent – State in Bail Application No.4903 of 2024 and
Ms. Ganapathy, learned APP for Respondent – State in Bail Application
No.825 of 2025.
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2. This is a group of two Bail Applications. In Bail Application
No.4903 of 2024, Applicant is arraigned as Accused No.1 in the crime
whereas in Bail Application No.825 of 2025, Applicant is arraigned as
Accused No.3 in the present case. Accused Nos.1 and 2 were
apprehended in a chance recovery due to their suspicious movements
by a patrolling team and found with the alleged contraband. 115
grams of Mephedrone (MD) was recovered from Accused No.1
whereas intermediate quantity of 25 grams of MD was recovered from
Accused No.2.
3. Accused No.2 is already enlarged on bail. Date of arrest is
23.06.2023. In the enquiry conducted under Section 67 of the NDPS
Act, Accused No.1 disclosed the name of Accused No.3 as being the
supplier of the alleged contraband to him. Hence, Accused No.3 was
also apprehended and arrested.
4. Prima facie in so far as Accused No.3 is concerned, at the
time of his arrest he was already incarcerated in prison in another
NDPS offence. Hence, the veracity of the statement recorded under
Section 67 of the NDPS Act about Accused No.1 having disclosed that
the alleged contraband was supplied by Accused No.3 to him prima
facie becomes a suspect.
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5. The Supreme Court in the case of Tofan Singh Vs. State of
Tamil Nadu1 held that statements recorded by NDPS officers could be
construed as statements to police officers given their duties and
responsibilities in preventing and detecting crime under the NDPS Act.
It held that right against self-incrimination and right to privacy under
Article 20(3) and Article 21 of the Constitution apply to confessions
recorded under Section 67 of the NDPS Act. It also held that officers
under the NDPS Act should be construed as 'police officers' under
Section 25 of the Indian Evidence Act, 1872 to prevent coercion in
recording confessions and that confessions made before such officers
are inadmissible as evidence to protect fundamental rights under
Articles 20(3) and 21 of the Constitution.
6. Ms. Ganapathy, learned APP for Respondent – State in Bail
Application No.825 of 2025 persuades the Court to consider that
Accused No.3 has antecedents against him. Prima facie, I find no
reason as to why his custody is warranted which is solely based on the
statement of co-accused recorded by the NDPS Officers as delineated
hereinabove when no contraband is recovered from his conscious
possession.
7. In so far as Accused No.1 is concerned, though learned
Advocate has persuaded me to consider the seizure panchnama,
inventory panchnama as also the other documentary evidence placed
1 (2021) 4 SCC 1
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on record and appended to the charge-sheet for giving an imprimatur
prima facie on transgression of the statutory provisions, I have heard
Mr. Karmakar, learned APP for the Respondent – State in Bail
Application No.4903 of 2024. Though Mr. Karmakar would prima
facie submit that even if there is a technical transgression of any of the
statutory provisions it would not wish away the fact that Accused No.1
was apprehended with the alleged contraband weighing commercial
quantity thereby inviting rigors of Section 37 of the NDPS Act. He
would submit that in that view of the matter, the onus would lie on the
Applicant to prove that he was not involved in the crime and his arrest
is prima facie mala fide and he be released on bail.
8. Mr. Karmakar would also persuade the Court to consider the
aspect of not giving any imprimatur or prima facie observations on the
grounds of transgression since it would affect the trial which the
prosecution desires to undertake before the Trial Court. He would
submit that giving a prima facie opinion on transgression of any of the
statutory provisions would probably entail the prosecution not to rely
upon the same at the time of trial and it would otherwise amount to
giving a clean chit to the Applicant at an interim stage.
9. He would in his usual fairness however inform the Court that
there is prima facie delay in commencing the trial which is evident
from the face of record since for the past 1 year and 5 months the
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Applicant is incarcerated but charge has not been framed. To that
extent Mr. Karmakar as also Ms. Ganapathy, learned prosecutors
would persuade the Court to pass appropriate orders.
10. I have heard Ms. Yerra, learned learned Advocate for
Applicant in Bail Application No.4903 of 2024; Mr. Satre, learned
Advocate for Applicant in Bail Application No.825 of 2025; Mr.
Karmakar, learned APP for Respondent – State in Bail Application
No.4903 of 2024 and Ms. Ganapathy, learned APP for Respondent –
State in Bail Application No.825 of 2025 with their able assistance
perused the record of the case.
11. On the aforementioned delineated facts and adhering to the
submissions made by the learned prosecutors, prima facie, I am of the
opinion that due to long incarceration of the Applicant in Bail
Application No.4903 of 2024 for more than 1 year and 9 months
pending trial Applicant can be released on bail. One of the reason
which impels me to consider the ground of long incarceration of the
Applicant being the only ground for consideration are the submissions
made by the learned prosecutors lest any prima facie imprimatur by
this Court on statutory transgression of procedure at this stage may
affect the prosecution case at the time of trial before the Trial Court.
Equally, considering the role of Applicant in Bail Application No.825 of
2025 and his indictment solely on the basis of co-accused statement
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and the above prima facie observations, he is also entitled to be
released on bail. Complicity of both Accused persons can be proved by
the Prosecution at the time of trial. In that view of the matter, both
Applicants can be released on bail.
12. Hence, Bail Applications are allowed subject to the following
terms and conditions:-
(i) Applicants are directed to be released on bail on
furnishing P.R. Bond in the sum of Rs.50,000/- each
with one or two sureties in the like amount;
(ii) Applicants are permitted to furnish provisional cash bail
of Rs.50,000/- each for their release immediately and
file undertaking that their will provide one or two
sureties in the like amount of Rs.50,000/- each within a
period of four weeks after their release which shall be
accepted by the Trial Court. Applicants shall provide
sureties as directed;
(iii) Before their actual release from jail, Applicants shall
furnish their address where they propose to reside after
their release from jail to the concerned Police Station
and also to the trial Court;
(iv) After their release from jail, Applicants shall report to
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the Investigating Officer as and when called for;
(v) Applicants shall attend the trial Court on first Tuesday
of every month between 11.00 a.m. and 1.00 p.m. to
mark their presence. If the first Tuesday of the said
month falls on a holiday and / or non Court working
day, the Applicants shall mark presence on the next
working day;
(vi) Applicants shall co-operate with the conduct of trial and
attend the trial Court on all dates unless specifically
exempted and will not take any unnecessary
adjournments, if they do so, it will entitle the
prosecution to apply for cancellation of this order;
(vii) Applicants shall not leave the State of Maharashtra
without prior permission of the Trial Court;
(viii) Applicants shall not influence any of the witnesses or
tamper with the evidence in any manner; and
(ix) In case of any infraction of the above conditions and /
or two consecutive defaults in marking their
attendance before trial Court, it shall attract the
provisions of Section 439(2) of Cr.P.C. i.e. for
cancellation of bail.
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13. It is clarified that the observations made in this order are
limited for the purpose of granting bail only and I have not made any
observations on merits of the case. The trial shall be adjudicated on
the strength of the evidence led and strictly on its own merits being
uninfluenced with any of the prima facie observations made herein
above in this order.
14. Both Bail Applications are allowed and disposed.
[ MILIND N. JADHAV, J. ]
Ajay
Digitally signed
by AJAY
AJAY TRAMBAK
TRAMBAK UGALMUGALE
UGALMUGALE Date: 2025.04.05
13:50:50 +0530
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