1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICAITON NO.228 OF 2008 IN CRIMINAL APPEAL NO.137 OF 2008 Ismail Raju Ajmeri @ Isala. ..Applicant. V/s. Union of India & Anr. ..Respondents. Mr.Ayaz Khan for Applicant. Mrs.P.H.Kantharia, for Respondent-Union of India. Mr.Y.S.Shinde, APP for Respondent-State. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : APRIL 10, 2008. DATE : APRIL 10, 2008. DATE : APRIL 10, 2008. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. Perused the evidence and documents on record. 2. The Applicant/Accused No.3 has been convicted for the offence punishable under Section 29 r/w 8(c) and 21(c) of the NDPS Act and sentenced to suffer R.I. for period of 10 years and to pay fine of Rs.One Lakh i.d. to suffer RI for one year. It is not in dispute that the trial against the Accused No.3 was separated and at the relevant time, he was in custody of Mandsaur Police Station in relation to some other offence. The trial against the Accused 2 Nos.1 and 2, who were also charged for conspiracy in relation to the same transaction alongwith the Applicant/Accused No.3 ended in Order of conviction against them and they have been sentenced to suffer R.I.for a period of 10 years for the said offence. It is also not in dispute that the Accused No.1 has been granted bail by this Court on 11th April, 2007 in terms of the Order passed below Criminal Application No.256 of 2007. The principal reason recorded by this Court is that no heroine and drug was recovered by the Intelligence Authority, whereas the whole case was based only on recovery of amount of Rs.15 Lakhs, which was recovered from the car intercepted by the Authorities and confessional statement of the Accused. Following the said Order, even the Accused No.2 came to be released on bail by this Court by Order dated 15th January, 2008 passed in Criminal Application No.498 of 2007 reiterating the position stated by this Court for releasing the Accused No.1 on bail. In both these Orders, the Court has additionally taken into account that there was no possibility of Appeal being heard immediately in the near future. Ideally, I would be inclined to follow the Order passed by two single Judges of this Court in respect of the Accused Nos. 1 and 2 respectively. 3 3. Learned APP however, submits that prosecution case against the Applicant is some what different. According to the learned APP, Applicant/Accused No.3 is the main person, who was indulging in supply of narcotics drugs to the other accused on their demand for consideration. The case of the Applicant therefore, will have to be treated differently as he has been additionally charged with offence punishable under Section 8(c) r/w 29 of NDPS Act. 4. The argument of the learned APP though attractive does not commend to me. The fact remains that this Court has already doubted the prosecution theory of criminal conspiracy while considering the bail application of Accused Nos. 1 and 2 as is noted earlier. Besides, I find substance in the stand taken on behalf of the Applicant that the prosecution witness No.3 has admitted in the cross-examination in paragraph-82 of his deposition that no specific material was collected by him to indicate that the Applicant had promised to supply contraband in exchange of Rs.15 Lakhs. Keeping this evidence in mind, it is doubtful whether the prosecution has been able to prove the charge beyond reasonable doubt. Assuming that the prosecution has been able to 4 establish the fact that the intelligence report was received by the Authorities, that by itself cannot be the basis to straightaway record finding of guilt against the Accused in relation to the charge of criminal conspiracy or for that matter of having engaged in the supply of contraband as such. The prosecution would be liable to establish by way of substantive evidence in the first place that criminal conspiracy was hatched between the Applicant and other Accused. It is a different matter that the said criminal conspiracy did not materialise, but nevertheless the factum of planning of the Accused is required to be established by the Prosecution by way of substantive evidence. Besides, the prosecution was also obliged to produce substantive evidence to establish that the Applicant was engaged in the business of supply of drugs. That is plainly lacking. The prosecution cannot be heard to straightway rely on the statement of the Accused or the Co-Accused under Section 67 of the Act to establish those facts as a substantive evidence. 5. Suffice it to observe that the admission of of P.W.3 in paragraph-82 makes it plainly clear that no investigation was made in that direction so as to collect substantive evidence to establish the factum 5 of promise made by the Applicant to supply contraband in exchange of Rs.15 Lakhs. It is also not in dispute that both the cars used in the commission of the offence were intercepted at the same time. However, what is recovered was only Rs.15 Lakhs from one of the car. There was no trace of heroine or any other contraband recovered from any of those cars. In that sense, this Court, on the earlier occasion, while releasing the Accused Nos. 1 and 2 on bail has, therefore, observed that the whole case against the Accused is based on recovery of Rs.15 Lakhs and no recovery of heroine in fact has been made, to give benefit to the concerned Accused. The view taken by this Court on the earlier occasion, which has been allowed to attain finality by the prosecution will have to be applied even to the case of the Applicant. 6. As observed earlier, I find no merits in the stand taken by the learned APP. In other words, even if the Applicant has been additionally charged with offence punishable u/s.8(c) of the Act, that will make no difference to the ultimate conclusion to be reached, having regard to the the view expressed in the foregoing paragraphs. 7. Taking over all view of the matter, as the 6 Applicant has made out formidable case and that it is unlikely that the Appeal preferred by the Applicant would be taken up for hearing in near future, in the interest of justice, it is appropriate that the Applicant is released on bail by imposing strict condition. Accordingly, this Application is allowed on following conditions: (a) The Applicant shall deposit the fine amount quantified by the trial Court, which will be subject to the outcome of the Appeal. (b) The Applicant Ismail Raju Ajmeri @ Isala is directed to be released on bail in connection with the offence in NDPS Spl.Case No.25 of 2006, if not required in any other case, on executing bail bond in the sum of Rs.1,00,000/-(Rs.One Lakh only) with one solvent surety in the like amount. (c) The Applicant shall report to the Office of Intelligence Officer, Narcotics Control Bureau twice in a month on 1st and 15th day of every English Calender month between 10 a.m. to 1 p.m. till further orders to be passed by this Court and/or 7 disposal of Appeal. (d) The Applicant shall not travel outside the district Greater Mumbai and district-Thane, without written permission of this Court. The Applicant shall not travel outside India without permission of this Court. (e) The Applicant shall inform his latest place of residence immediately after being released and/or change of residence, if any from time to time, to the Office of Intelligence Officer, NCB, where he would report. (f) The Applicant shall deposit passport, if any, with the Office of Intelligence Officer, NCB within three weeks from the date of his release, which will be retained by the said office till further order to be passed by this Court. In case, the Applicant does not have any passport or has already deposited the same with any Authority, shall file affidavit to that effect within three weeks from the date of his release in this 8 Court. 8. Application disposed off on the above terms. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)