* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3772 OF 2008 Kalpana Bhupesh Kutur ...... Applicant V/s. The Intellegience Officer Air Intllegence Unit Customs, Mumbai ......Respondents ======== Mr.Rizvan G.Merchant and Mr.Swapnil L.Wagh, adv.for applicant. Mr.H.V.Mehta, adv.for respondent. Mr.H.J.Dedhia, APP for State. CORAM: SMT.R.P.SONDURBALDOTA, J. DATED: 9TH FEBRUARY, 2009. P.C. : 1. Heard the counsels for both sides. 2. This application is filed under Section 482 Cr.P.C. and Article 227 of the Constitution of India for setting aside the order dated 15th September, 2000 passed by the learned Special Judge in Misc.Application no. 768 of 2007 seeking discharge from the proceedings. By the impugned order, the application for discharge was rejected. The present application is opposed by the respondents. * 2 * 3. The applicant was a permanent employee of Air India working as a Senior Telecom Officer since last 14 years. She was arrested by the respondent i.e. Air Intellegience Unit, Customs, Mumbai on 20th November, 2006 for commission of offences under The Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the N.D.P.S Act'), in connection with the offence registered vide C.R.No. 58/2006. Later, chargesheet came to be filed against the applicant who is the original accused no.3 before the Special Court under Section 29, 20(b)(ii)(c) and 28 read with Section 23 and 8(c) of the N.D.P.S. Act bearing no. N.D.P.S.Special Case No. 115 of 2007. 4. The applicant had filed an application for bail which was allowed by the learned Special Judge. The learned Special judge has observed in the order that there were reasonable grounds for believing that the applicant is not guilty of the offences alleged. Thereafter, respondent no.1 filed draft charges and the applicant alongwith the another acused preferred an application for discharge which came to be rejected by the impugned order. 5. Mr.Merchant, learned counsel for the applicant challenges the impugned order contending that the charges proposed by the prosecution are devoid of any cogent or * 3 * convincing evidence. It is also submitted that taking into consideration, the statements of the co-accused and the circumstances in which the accused were arrested from the Airport, it must be held that the applicant (accused no.3)did not know the other accused persons and hence there can be no conspiracy to abet commission of any offence punishable under Section 29 of the N.D.P.S. Act. It is also submitted that the applicant had neither acquired, purchased, stored nor transported any drug or Hashish in particular found from the baggages of accused nos.1 and 2. Mr.Merchant, submits that the applicant had played a very innocuous role in the entire incident of trying to help accused nos.1 and 2 in getting the charges for the excess baggage waived by the concerned authorities. The moment it was realised by her that the concerned officer is not willing to waive the charges for excess baggage, she had left the place to go home. Therefore, according to the learned counsel, there was nothing incriminating against the applicant. Infact, the applicant was informed that what was being carried by accused nos.1 and 2 were Ayurvedic medicines only and not narcotic drugs. 6. Mr.Merchant, has taken me through the entire lengthy order dated 13th August, 2007 granting bail to the applicant in which the learned Special Judge has drawn conclusion that * 4 * there was no reasonable ground for believing that the applicant was guilty of the offences alleged against her. He submits that in view of Section 37(i)(b)(ii), it was necessary for the learned judge to be satisfied that there are reasonable grounds for believing that the applicant is not guilty of such offences and that he is not likely to commit any offence while on bail, before he is released on bail. He submits that since, this is the legal requirement, any observations made thereunder must carry due weight. He also submits that the conclusion is drawn by a reasoned order of the learned Special Judge. Therefore, this by itself should be sufficient for discharging the applicant. This contention of the applicant has been discarded by the the learned Sessions Judge who rejected the application for discharge with a comment that the observations in the bail order cannot be taken into consideration for holding that there is no material to show conspiracy against accused no.3. The learned Sessions Judge is right in his comment on the order because the appreciation of the material on record for deciding an application for discharge will have to be far more deeper and serious than while considering an application for bail. Therefore, the observations made by the learned Special Judge while releasing the applicant on bail cannot be a yardstick * 5 * while considering the application for discharge from the proceedings. The entire material which is available on record will have to be considered separately, independent of any prima-facie observations made thereon in the order on the application for bail. 7. The material against the applicant is in the form of the complaint, statement of the co-accused and her own statement. The copies of the statement recorded have been produced for the perusal of this court. The statements have also been extensively quoted in the order passed on the bail application. It is the claim of the applicant that she knew accused no.4, a person by name Mr.Elias Harman as he used to visit the shop run by her family members selling fish items. Accused no.4 had approached her with a request that some of his acquaintances were going to Sydney and had some excess baggages with them and she should help them in carrying the excess baggages without having to pay any extra charges for the same. The applicant agreed to help him in this regard and that is how she was at the place of incident. For that purpose, she had come from her own office to the Air India Building and spoken to one Mr.Bhupesh inquiring whether he could do the needful and waive the extra charges. Mr.Bhupesh had expressed that it was not within his powers to waive the * 6 * charges for the excess baggage. Thereafter, the applicant had immediately left the place as she needed to go home. She returned home alongwith accusead no.4 who was waiting for her outside the Airport. Accused no.2 stated in her evidence that `a man said stop as we were walking, and a lady came and asked us to follow her in the terminal. We followed the lady in the departure terminal till the X-ray machine.' Accused no.1 stopped at the baggage X-ray machine, when the lady who had accompanied them i.e. the applicant disappeared. The statement of the applicant herself is that one Mr.Harman had told her that the two passengers i.e. accused nos.1 and 2 were carrying Ayurvedic medicines to Amsterdam and she had requested the Air India Security staff to help them regarding excess baggage charges. Mr.Merchant submits that the role of the applicant is only getting the excess baggage charges waived has been misunderstood by the learned sessions judge in his order on the discharge application by saying that the applicant had tried to get the security clearance for accused nos.1 and 2. He submits that if the applicant were to attempt to get the security clearance for accused nos.1 and 2, she would not have left the place. When Mr.Bhupesh expressed his inability, she would have tried to contact the correct person. However, that was not so and what the applicant was doing was * 7 * only getting the excess baggage charges waived which was an innocuous job done by her. The material before the court in the form of statements of the accused persons and other witnesses throws up much more material and questions which can be properly answered at the time of trial. It is the case of the applicant that as soon as she realised that the concerned person was not willing to help accused nos.1 and 2, she had left. However, the record shows that the applicant had gone to the security check seeking waiver of the service charges. In that case, she ought to have known the contents of the baggage. Besides, from her statement and statement of accused no.4, it is seen that both were of acquaintance for a very short duration. Similarly, accused no.4 did not know accused nos.1 and 2 directly. He had been asked by somebody else to help accused nos.1 and 2 who were going to Amsterdam carrying some Ayurvedic medicines with them. Surprisingly, these facts did not put the applicant to alert. He had come to know about them through a person by name Samuel. Accused no.4 claims to have known Samuel for hardly five to six months. Samuel had allegedly come to airport to show the applicant those two persons who had accompanied her to the airport. It is also seen from the record that accused no.4 was in constant touch with accused nos.1 and 2. In that circumstance, he must * 8 * have known about the drugs being carried away by the two persons. The prosecution alleges that no person by name Samuel exists. But, the applicant insists that such a person does exist. 8. Considering the entire record, it appears that there are several holes in the story put forth by the applicant about the role played by her in the case. The applicant who was a telephone operator had surprisingly at the request of somebody of a very short acquaintance, agreed to do a very risky and serious job of helping the two persons who are not Indian nationals in getting their excess baggage charges waived. This was despite the knowledge that these people were carrying something with them, that was being described as Ayurvedic medicines. This could have put any other reasonably prudent person on alert but not the applicant. She also knew that applicant no.4 was continuously in contact over the mobile with accused nos.1 and 2. This also did not raise any suspicion in the mind of the applicant. She was also aware that accused no.4 was doing it for some acquaintance of his, which association was barely of a few months. However, she took up the work and tried to help accused nos.1 and 2. In these circumstances, it cannot be said that the material available before the court against the applicant is not * 9 * sufficient to discharge her. Therefore the application for discharge was rightly rejected by the learned trial judge. Hence, the application is dismissed. [JUDGE]