1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO.1598 OF 2010 Sk. Babu @ Usman s/o Sk. Sultan ... APPLICANT VERSUS The State of Maharashtra ... RESPONDENT ..... Shri J.V. Deshpande, Advocate for the applicant Shri S.G. Nandedkar, A.P.P. for the respondent ..... CORAM : SHRIHARI P. DAVARE, J. DATED : 29h April, 2010 PER COURT: 1. Heard Mr. J.V. Deshpande, learned counsel for the applicant as well as heard Mr. S.G. Nandedkar, learned A.P.P. for the respondent. 2. This is an application preferred by the applicant, seeking anticipatory bail, apprehending his arrest under C.R. No.II-02/2010, registered at Kranti Chowk Police Station, Aurangabad, for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. 2 3. It appears that, offence has been registered on the complaint lodged by Shahed Rashid Abdul Siddiqui, P.S.I., Crime Branch, Aurangabad on 4.2.2010, alleging that, secret information was received on 3.2.2010 that, two persons were to come Aurangabad by City Link Travel bus for selling Ganja. Accordingly, after observing necessary formalities, a trap was laid by the police personnel. Thereafter, as per the said information, two persons alighted from City Link Travel bus at about 0045 Hrs. near Baba Petrol Pump and one person had worn ear-ring and red colour shirt and he was holding a bag on his shoulder whereas another person had worn yellow shirt, and after alighting the said persons from the said bus, the police personnel rushed towards them to catch hold of them, and caught hold of the person who had held a bag on his shoulder and wore a ear-ring, but the another person wearing yellow shirt succeeded to escape. On enquiry, the person who was accosted, gave his name as Altaf Shaikh and disclosed the name of his associate as Baba @ Usman, i.e. the absconding associate. The search of the said bag was conducted, which found to contain 12 Kgs. of Ganja and same was seized under the panchanama, after observing necessary formalities and the said accused was taken into custody, and offence was registered. 4. On the aforesaid background, the learned counsel for the applicant submitted that, he was a mere passenger in the said 3 City Link Travel bus and has no concern with the accused who was accosted as aforesaid. It is also submitted that the accosted the person was holding the bag containing the contraband and applicant had no knowledge thereof and applicant was not in conscious possession of the said contraband and, therefore, it is submitted that, there are reasonable grounds to believe that the applicant is not guilty of the alleged offence. Moreover, it is also canvassed that, since there are no criminal antecedents of the applicant, applicant is not likely to commit similar offence if the present application for anticipatory bail is allowed. To substantiate the said contention, the learned counsel for the applicant relied upon the observations made by the Hon’ble Supreme court in the case of Union of India Vs. Shri Shiv Shankar Kesari, reported at (2007 ALL MR (CRI) 2971 (Supreme Court), in which it is held that, “The Court while considering the application for bail with reference to Section 37 of the Act is not entitled upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. Additionally, the Court has to 4 record a finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such a conclusion. 5. The learned A.P.P. opposed the present application vehemently and submitted that the applicant ran away from the spot when the co-accused Shaikh Altaf Shaikh was apprehended and since then the applicant is absconding and is not available for the purpose of investigation. The learned A.P.P. also canvassed that during the course of investigation, statements of the witnesses have been recorded and the statement of Sachin Jaiswal, Travel Agent and statement of Yogesh Kavade, owner of the said Travel agency connects the applicant with the crime. It is also canvassed that, presumption of culpable mental state of the applicant under Section 35 of the N.D.P.S. Act is also required to be raised against the applicant since he was accompanying with the co-accused from whose possession Ganja was recovered. Accordingly, the learned A.P.P. submitted that present application bears no substance and is devoid of any merits and hence, same be dismissed. 6. On perusal of investigation papers and after considering the rival submissions advanced by both the learned respective counsel for the parties, apparently, the statement of Sachin Jaiswal i.e. travel agent, which was recorded during the course of 5 investigation, connects the applicant with the alleged crime, since it discloses that he had booked ticket for two persons for Mumbai of Shri Chintamani Travels, and the said ticket is also in the name of the applicant herein and, therefore, apparently, the co-accused Shaikh Altaf, who was accosted and the applicant herein travelled through City Link Travel bus together on the said ticket. At the time of apprehending the co-accused person Shaikh Altaf by the police personnel as per trap laid by them, it is alleged that, the applicant herein managed to escape from the said spot and since then he is not available for the investigation purpose and, therefore, apparently, presumption of culpable mental state under Section 35 of the N.D.P.S. Act can be raised against the applicant. 7. Besides that, huge quantity of Ganja weighing 16 Kgs. was recovered from the possession of co-accused Shaikh Altaf Shaikh in accordance with the aforesaid recovery. Hence, considering the facts and circumstances, and having the comprehensive view of the matter, apparently, there are reasonable grounds to believe that the applicant is guilty of the offence levelled against him. 8. Moreover, considering the conduct of the applicant that he allegedly escaped at the time of raid and since then he is not available for the purpose of investigation, the possibility of 6 committing the offence by the applicant while on bail, if released, granting the present application for anticipatory bail, cannot be ruled out. Hence, in the aforesaid scenario, the observations made ion the aforesaid ruling (supra) cannot be of any aid and assistance to the applicant/accused. 9. In the result, present application being sans merits, stands dismissed. 10. Needless to say that the above observations are prima facie in nature and shall not come in way of any Court while deciding the matter on merits. (SHRIHARI P. DAVARE) JUDGE fmp/cri159810