STATE BY (NCB) BENGALURU versus PALLULABID AHMAD ARIMUTTA & ANR. on 10 January 2022

1. As the facts of the present petitions are intertwined, havingarisen from two connected cases registered as NCB Case FN No. 48/01/03/2019/BZU and NCB Case FN No. 48/01/07/2019/BZU, it isproposed to dispose them by a common order. The petitioner-NarcoticControl Bureau, Bengaluru Zonal Unit[1], is aggrieved by an order dated16[th] September, 2019 passed in Criminal Leave Petition No. 4462/2019(subject matter of SLP(Crl.) Diary No. 22702/2020), order dated 14[th]January, 2020 passed in Criminal Leave Petition No. 8603/2019 (subjectmatter of SLP (Crl.) No. 1454/2021), order dated 16[th] January, 2020passed in Criminal Petition No. 7861/2019 (subject matter of SLP (Crl.)No. 1465/2021), order dated 19[th] December, 2019 passed in CriminalPetition No. 7624/2019 c/w Criminal Petition No. 6609/2019 (subjectmatter of SLP (Crl.) Nos. 1773-1774/2021), order dated 08[th] January,2020 passed in Criminal Petition No. 7714/2019 (subject matter of SLP(Crl.) No. 1569/2021) and order dated 20[th] January, 2020 passed inCriminal Petition No. 7897/2019 (subject matter of SLP (Crl.) No. 2080/2021). By the aforesaid orders, the High Court of Karnataka has releasedthe respondents on bail for the offences punishable under Sections 8(c),8A read with Sections 20(b), 21, 22, 27A, 27B, 28 and 29 of the NarcoticDrugs and Psychotropic Substances Act, 1985[2], as the case may be.

2. The facts leading to registering of the aforesaid cases againstthe respondents are that on 22[nd] March, 2019, the petitioner-NCB hadreceived information that two persons i.e., Nausheer Mohammed [A-1]and Noushad Mannakkamvalli [A-2] were going to carry drugs and travelto Doha by Oman Airways from Bengaluru International Airport.Immediately on receiving such information, a team of NCB officersarrived at the airport and on searching the luggage of A-1 and A-2,

1 In short ‘NCB’

2 In short ‘NDPS Act’

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Aseized 4.525 Kgs of Hashish, 965 Grams of Amphetamine and 30 Gramsof Cocaine. Both the respondents in SLP(Crl) @ Diary No. 22702/2020i.e. Pallulabid Ahamad Arimutta and Mohammed Majid Saleem werearraigned as Accused Nos. 3 and 4 in NCB Case FN No. 48/01/03/2019/BZU[3 ]and arrested for the offences stated above. Similarly,Mohammed Afzal[A-6], respondent in SLP (Crl.) No. 1454/2021 wasBarrested on an allegation that his Call details record[4] revealed that hewas in constant conversation with A-2 and one Abu Thahir @ Abdu [A-5]. Additionally, reliance was placed by the Department on the statementof A-5 recorded under Section 67 of the NDPS Act which purportedlyrevealed that both of them had arranged the drugs that were deliveredCto A-1 and A-2 on 22[nd] March 2019, who were going to carry the samein their luggage while flying to Doha.

3. Munees Kavil Paramabath [A-8], respondent in SLP (Crl.)No. 1454/2021 was purportedly found to be in conversation with A-2, A-6, A-7 and A-8 as per the CDR of A-5 on the date of the seizure. TheDpetitioner-NCB claims that apart from the statement of A-5 recordedunder Section 67 of the NDPS Act, he had also voluntarily stated duringhis examination that he was paid money by A-8 for financing the drugs.Abu Thahir @ Abdu [A-5] and Sabir Bayan [A-7], respondents in SP(Crl.) No. 1773-1774/2021 were similarly arrested on the statement ofthe co-accused, namely, A-2, A-6 and A-8 and on an allegation thatEflight tickets of A-1 were recovered from the house of A-5 and A-6.

4. After registering the first case and in the course of conductingan investigation officers of the petitioner-NCB claimed to have gatheredcredible information that Abu Thahir @ Abdu and Mohammed Afzalarraigned as [A-1] and [A-2] in NCB Case FN No. 48/01/07/2019/FBZU[5], were going to reach Bengaluru Airport alongwith persons namedKhushboo Sharma and Mohammad Asif for trafficking drugs to Doha.The said accused were apprehended in the parking area of BengaluruAirport on 15[th] June, 2019. It is stated that Khushboo Sharma was foundto be in possession of a black bag that when searched, revealed 510Ggrams of Methamphetamine concealed in sanitary napkins. Further, whenA-1 and A-2 were taken by the Department to a tenanted flat occupiedby them, NCB officers found huge quantities of drugs stashed there, 3 Hereinafter referred to as the ‘first case’

4 For short ‘CDR’

H5 Hereinafter referred to as the ‘second case’

namely, 330 Grams of Methamphetamine, 13.680 Kgs of Hashish, 2.850Kgs of Hashish Oil, 9.050 Kgs of Ganja and 4586 Capsules of Lyrica.

5. The specific allegations levelled against Mohammed Afzal [A-2], respondent in SLP (Crl.) No. 1569/2021 who was granted bail videorder dated 08[th] January, 2020 in the second case registered by theNCB, is that apart from his own inculpatory statement and theconfessional statement of the co-accused, Abu Thahir @ Abdu [A-1]recorded under Section 67 of the NDPS Act, large quantity of drugswere seized at his tenanted premises and from the hand bag of the co-accused, Khushboo Sharma also found to be in his possession at theAirport, which concealed drugs.

6. As for Munees Kavil [A-5], respondent in Criminal PetitionNo. 7897/2019 who was granted bail vide order dated 20[th] January, 2020in the second case registered by the NCB, the basis for arresting himwas the statement made against him by the co-accused, A-1 underSection 67 of the NDPS Act disclosing therein that A-5 had sent drugsto Doha on several previous occasions on instructions received from hisbrother and that he was financing the drug business.

7. Mr. S.V. Raju and Mr. K. M. Nataraj, learned AdditionalSolicitors General both appearing for the petitioner-NCB in the connectedpetitions have challenged the impugned orders primarily on the groundthat the High Court has erred in returning a finding that the rigors ofSection 37 of the NDPS Act are not attracted to the facts of the presentcases; that none of the pre-conditions stipulated in Section 37 of theNDPS Act that starts with a non-obstante clause, had been met in theinstant cases for granting any relief to the respondents and that aconcession has been granted to the respondents on an erroneouspresumption that there is a reasonable ground for believing that they arenot guilty for such an offence. It has been vehemently argued by thelearned Additional Solicitors General that in the instant cases, there existedjustifiable reasons to reject the bail applications of the respondents andthere was hardly any ground to believe that they were not guilty of theoffences alleged against them or that they are not likely to commit anysuch offence while on bail.

8. Vide order dated 05[th] January, 2020, learned counsel for thepetitioners-NCB were directed to prepare a comprehensive tabulatedstatement with respect to the role attributed to each of the respondents,the evidence gathered against them at the time of their arrest, their AB

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Aantecedents, the dates on which they were arrested and the period ofcustody undergone by them, for ready reference. The said tabulatedstatement has been filed and a perusal thereof reveals that in SLP (Crl.)@ Diary No.22702/2020, SLP (Crl.) No.1454/2021, SLP (Crl.) No. 1465/2021, SLP (Crl.) Nos. 1773-1774/2021, SLP (Crl.) No. 2080/2021, heavyreliance has been placed by the petitioner-NCB on the voluntaryBstatements of the accused and the co-accused recorded under Section67 of the NDPS Act for arresting them. Another piece of evidencereferred to is the CDR details in respect of A-3, A-4, A-5, A-6 and A-8in the first case which as per the prosecution, goes to show that the saidrespondents were constantly in touch with each other and with A-1 andCA-2 on the date of the seizure. The attention of this Court was alsodrawn to the fact that the antecedents of A-5, A-6 and A-8 in the firstcase and A-2 and A-5 in the second case are not clean.

9. Having gone through the records alongwith the tabulatedstatement of the respondents submitted on behalf of the petitioner-NCBDand on carefully perusing the impugned orders passed in each case, itemerges that except for the voluntary statements of A-1 and A-2 in thefirst case and that of the respondents themselves recorded under Section67 of the NDPS Act, it appears, prima facie, that no substantial materialwas available with the prosecution at the time of arrest to connect therespondents with the allegations levelled against them of indulging inEdrug trafficking. It has not been denied by the prosecution that exceptfor the respondent in SLP (Crl.) No. 1569/2021, none of the otherrespondents were found to be in possession of commercial quantities ofpsychotropic substances, as contemplated under the NDPS Act.

10. It has been held in clear terms in Tofan Singh Vs. State ofFTamil Nadu6, that a confessional statement recorded under Section 67of the NDPS Act will remain inadmissible in the trial of an offenceunder the NDPS Act. In the teeth of the aforesaid decision, the arrestsmade by the petitioner-NCB, on the basis of the confession/voluntarystatements of the respondents or the co-accused under Section 67 ofGthe NDPS Act, cannot form the basis for overturning the impugned ordersreleasing them on bail. The CDR details of some of the accused or theallegations of tampering of evidence on the part of one of the respondentsis an aspect that will be examined at the stage of trial. For the aforesaidreason, this Court is not inclined to interfere in the orders dated 16[th]

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September, 2019, 14[th] January, 2020, 16[th] January, 2020, 19[th] December,2019 and 20[th] January, 2020 passed in SLP (Crl.) No@ Diary No. 22702/2020, SLP (Crl.) No. 1454/2021, SLP (Crl.) No. 1465/2021, SLP (Crl.)No. 1773-74/2021 and SLP (Crl.) No. 2080/2021 respectively. Theimpugned orders are, accordingly, upheld and the Special Leave Petitionsfiled by the petitioner-NCB seeking cancellation of bail granted to therespective respondents, are dismissed as meritless.

11. However, the evidence brought before us against MohammedAfzal [A-2], respondent in SLP (Crl.) No. 1569/2021, subject matter ofthe second case i.e., NCB Case FN No. 48/01/07/2019/BZU, who wasgranted bail vide order dated 08[th] January, 2020, will have to be treatedon an entirely different footing. There are specific allegations levelledagainst the said respondent regarding recovery of substantial commercialquantities of drugs from a rented accommodation occupied by himpursuant to which he was arrested on 16[th] June, 2019. This aspect hasbeen completely overlooked while passing the order dated 08[th] January,2020 wherein, the only reason that appears to have weighed with theHigh Court for releasing him on bail is that his case stands on the samefooting as A-1, A-3 and A-4 who had been enlarged on bail vide ordersdated 11[th] October, 2019, 16[th] September, 2019 and 09[th] September, 2019,in connection with the second case registered by the Department. Weare of the firm view that A-2 cannot seek parity with the aforesaid co-accused and no such benefit could have been extended to him in view ofSection 37 of the Act when he was found to be in conscious possessionof commercial quantity of psychotropic substances, as contemplated underthe NDPS Act. That being the position, the petitioner-NCB succeeds inSLP (Crl.) No. 1569/2021. The bail granted to the respondent-MohmmedAfzal [A-2] is cancelled forthwith at this stage and he is directed tosurrender before the Sessions Court/Special Judge (NDPS) within aperiod of two weeks, for being taken into custody.

12. The petitions are disposed of in terms of the aforesaid order.

13. Needless to state that the observations made above are limitedto examining the relief sought in the present petitions for cancellation ofbail. This Court has refrained from making any observations on the meritsof the case pending before the trial Court.

Petitions disposed of.

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