1 apln5433-09 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.5433 OF 2009 Mr.Saji Mohan. ..Applicant. Versus State of Maharashtra. ..Respondent. ........... Mr.Shirish Gupte, Senior Counsel a/w. Mr.Prakash Naik, Advocate for the applicant. Mrs.A.S. Pai, A.P.P., for the State. ........... CORAM : A.R.JOSHI, J. DATED : 12TH AUGUST, 2010 P.C. 1. Heard rival submissions at length on this application for regular bail preferred by the applicant for his release on bail during pendency of the NDPS case registered against him for the offences punishable under Section 21 read with 8(c) of NDPS Act, 1985. 2 apln5433-09 2. At the threshold it may be mentioned that the co- accused in the present matter was not granted bail by this Court vide order dated 7th June, 2010. 3. The facts of the present case can be narrated in brief in order to ascertain the prima facie involvement or otherwise of the present applicant. On prior information, raid was conducted, in which, two accused persons were detained on a particular spot and 1 Kg. heroin each was found with them. Trap panchanamas were conducted. Samples were drawn and both the said persons were taken in custody. During their interrogation, the name of the present applicant was revealed. It was also revealed that the source of the said heroin found with the said two accused persons was traced to the present applicant from Chandigarh. Secret operation was undertaken to gather technical intelligence by way of getting the conversation recorded between accused No.1 and the present applicant. As such application for sanction was made on 22.1.2009 for taping the telephone line and getting the 3 apln5433-09 connection to the known number of the police department. From such conversation, an arrangement was made that the present applicant shall come down to Bombay on 24.1.2009 in "The Classique Club", Oshiwara, Andheri (E), Mumbai. Accordingly the relevant room No.304 of "The Classique Club" was raided after drawing pre-trap panchanama in presence of the panch witnesses. During search of the present room, present applicant was found in the room. He identified himself as officer from NCB. He is apprised of his right under Section 50 of the NDPS Act. His search was conducted. One black coloured trolley bag was found in the room. It was opened by the applicant by procuring key from his money- purse. Twelve packets of 1 kg. heroin each were found in the said bag. Requisite samples were taken out. On testing, the packets were found containing heroin. Detailed trap- panchanama was conducted. Present applicant was put under arrest. 4. During interrogation, on 26.1.2009 present applicant 4 apln5433-09 volunteered to make a statement to show the place and other contraband heroin. Accordingly in one flat at Naigaum raid was conducted after taking usual precautions. Said flat was found closed. Present applicant provided the mobile number of the owner of the flat. The owner came down and opened the flat with his keys. During the search of the flat, one black coloured bag was found on the loft over the toilet area. During search of the said bag, 25 packets collectively weighing 25.100 kgs. of heroins were found. Requisite samples were taken. Testing of the powder was done on field testing kit. Various other articles found in the packet such as mobile phone, credit card, laptop, CDS, DVDS and pieces of cigarette were also taken charge of. Detailed panchanama was drawn. 5. During the course of investigation, voice samples of original accused No.1 and present applicant were obtained under the panchanama. They were sent to FSL, Mumbai for comparison with intercepted conversation between accused 5 apln5433-09 No.1 and present applicant. Scientific analysis confirmed that the conversation contained the voice of the present applicant and that of accused No.1. On 12th May, 2009, chargesheet was filed for the offence punishable under Section 8(c) read with Sections 21 & 29 of NDPS Act, 1985. Special case was numbered as 63 of 2009 which is presently pending before the concerned Special Court under the NDPS Act at Mumbai. 6. An application for regular bail preferred before the concerned Special Court was rejected by the Special Court vide order dated 14.11.2009. 7. During the arguments, learned Senior Counsel Shri Gupte for the applicant taken exception to the evidence of the prosecution allegedly gathered against the present applicant. Firstly, it is submitted that it is an irregular procedure adopted by the prosecution to obtain sanction for interception of the telephone conversion. It is further brought to the notice of the Court that the mobile telephone number which was used for making accused No.1 to converse with the present 6 apln5433-09 applicant, was infact belonging to one police officer. However, in the letter sent for the authority for obtaining the sanction, it was mentioned that the said telephone number i.e. No. 9702109610, was being used by accused No.1 and it was his telephone number. Secondly, it is argued that no independent panchas were obtained during the search and seizure at "The Classique Club" premises or in the flat at Naigaum and as such the authenticity of the panchanama procedure is doubted, further argued. Thirdly, it is submitted that when 5 gms. of sample was taken out from each packet there could not have been the same quantity of 1 kgs. left out after drawing of the samples. In short, on this third aspect, it is submitted that there is a discrepancy in the wighment of the sample and the remaining bulk. 8. It is also argued on behalf of the applicant by taking shelter of the ratio propounded by the authority : 2005ALL MR (Cri) 1538 (S.C.) Ranjitsing Brahmajeetsing Sharma Vs. State of Maharashtra & Anr. that the relevant provisions 7 apln5433-09 barring grant of bail for the offence under the Maharashtra Control of Organized Crime Act, 1999, for short MCOCA are analogous to Section 37 of the NDPS Act, 1985 and as such it is submitted that there should be reasonable ground to believe that the accused had committed the offence under the said Act. It is further submitted that restriction on the power of the Court to grant bail should not be pushed too far and if the Court having regard to the material brought on record is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. 9. After going through the ratio propounded by the above authority and still accepting the preposition of law, still it can be said that whether or not in particular given set of facts, it is to be ascertained whether in all probabilities the accused can be held guilty or not. In other words, considering the peculiar facts, as narrated above as against the present applicant, in the opinion of this Court, the bar under Section 37 of the NDPS Act, 1985 comes into play. 8 apln5433-09 10. So far as the other defences mentioned above are concerned, it must be said that it is question of appreciation of evidence and that is to be done when the matter is put to trial. At this stage of grant or otherwise of bail, in the opinion of this Court, there is sufficient material to held the involvement of the present applicant in the offences charged against him and in that view of the matter, it would not be in the fitness of the situation to release him on bail during pendency of the said case. In the result, present application is disposed of with following order :- :: O R D E R :: [i] Criminal Application No.5433 of 2009 for regular bail stands rejected. (A.R.JOSHI,J.) PPD