Ahamed Abdul Hameed Mushraf vs. The Io And Anr

BA.3433.2021.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURI ICTION BAIL APPLICATION NO. 3433 OF 2021 Ahamed Abdul Hameed Mushraf ...Applicant Versus The Investigating officer & Anr. ...Respondents ***  Mr. Aabad Ponda, Senior Counsel a/w Ayaz Khan i/b Munira Palanpurwala and Sumaiya Khan, for Applicant.  Ms. Megha Bajoria, Special Public Prosecutor, for Respondents No.1 *** CORAM : MANISH PITALE, J. DATE : 22nd July, 2024. P. C. :

The case of the prosecution is that all the six accused persons were involved in dealing with and seeking to export huge quantity of contraband Ketamine (38.687 kgs) concealed in Bangles. The consignment allegedly containing the contraband was recovered from Air Cargo Complex Shrikant Malani SHRIKANT SHRINIVAS MALANI SHRIKANT SHRINIVAS MALANI Date: 2024.07.22 18:12:07 +0530

BA.3433.2021.doc Sahar Airport Mumbai on 31st October, 2018. Initially the investigating authority proceeded against unknown persons. But, after the investigation the role of the accused persons came to light. The applicant has remained behind bars for slightly more than 5 years as on today.

Mr. Ponda, learned senior counsel appearing for the applicant made the following submissions : (A) Even if the material upon which the investigating authority has placed reliance is to be taken in consideration, there is nothing to link the applicant with the offences in question. (B) The applicant was never apprehended with contraband and the investigating authority has relied upon statements of certain witnesses and other material, which establishes no connection of the applicant with the offence in question. (C) It is submitted that reference is made to an alias being allegedly used by the applicant for which there is no supporting material. It is further submitted that one of the alleged witnesses who claimed to have identified the applicant, simply stated that the person being shown to him wearing white shirt was Abdul Kadir i.e. the alias allegedly being used by the applicant and that identification is sought to be established on the basis of such defective procedure. No Test Identification Parade was conducted. (D) It is further submitted that there is no material on record to demonstrate Shrikant Malani 3.BA.3433.2021.doc that the mobile phones and or mobile numbers, upon which the investigating authority has relied, could be said to have been used by the applicant. It is not even the case of the investigating authority that any of the SIM cards were registered in the name of the applicant. (E) It is further submitted that accused Nos.1 and 2 have been already granted regular bail by the Sessions Court, when their role even according to the investigating authority, is supposed to be the major role. Accused No.4 has been granted anticipatory bail, while accused Nos.5 and 6 are absconding. (F) It is submitted that the applicant having already undergone incarceration for more than 5 years and there being no sign of the trial even commencing, much less being completed in a reasonable period of time, as per the law laid down by the Supreme Court and followed by this Court, bail deserves to be granted to the applicant. Specific reliance is placed on recent judgment and order passed by the Supreme Court on 18th July, 2024 in Criminal Appeal No.2790 of 2024 (Sheikh Javed Iqbal @ Ashfaq Ansari @ for contesting respondent No.1 made the following submissions : (i) The statement of witness Sandeep Bhalotia recorded during the course of investigation shows that the said witness not only identified the applicant but also described his role in detail, thereby implicating the applicant with the Shrikant Malani 3.BA.3433.2021.doc offences in question. (ii) The statement of witness Gurmeet Deshwal also shows that the description of the applicant has given in detail as a person about 6 feet tall, having bluish/greenish eyes, along with detailed description of the manner in which the applicant was involved with the company M/s Cube Impex for GST registration. It is alleged by the investigating authority that the said company M/s. Cube Impex, of which the applicant was an employee was directly involved in the said incident of concealing contraband Ketamine in Bangles. (iii) Reliance was placed on statement of Adil Ibrahim Maniar i.e. the person who sold Bangles to M/s Cube Impex, thereby indicating that the said Bangles were used for concealing and an attempting to export the contraband. The said person also described the role of the applicant as one of the persons associated with M/s. Cube Impex. On the basis of such statement, it is claimed that there is enough material to link the applicant with the offences in question. (iv) It was submitted that the association of the applicant with the co- accused persons having been established, merely on the basis that the applicant has undergone about 5 years of imprisonment, it cannot be said that the applicant deserves to be enlarged on bail. On this basis, it is submitted that the application deserves to be dismissed.

This Court has considered the rival submissions in the light of the Shrikant Malani 3.BA.3433.2021.doc material available on record. It is an undisputed position that accused Nos.1 and 2 were granted regular bail by the Sessions Court itself in terms of orders passed in the years 2020-2021. Accused No.4 was granted anticipatory bail. Although, it was claimed at one point by the learned SPP that applications have been moved for cancellation of bail of the said accused persons, there is nothing on record to show that the bail granted to the said co-accused persons has been interfered with, in any manner, by this Court. It is also relevant to note that accused Nos.1 and 2 are supposed to be the persons not only associated with M/s Cube Impex, but also being directors and owners of the same. Since the investigating authority claims that the said company was involved in the aforesaid activity of concealing contraband Ketamine in the large quantities in Bangles for exporting the same to Malaysia, accused Nos.1 and 2 being granted bail is certainly a relevant circumstance, while considering the present application. This is because even as per the material available on record, the applicant is said to be an executive or an employee of the said company M/s Cube Impex. His role as an employee is to be examined in the backdrop that the directors of the company and those closely associated with it i.e. accused Nos.1 and 2 have been already granted regular bail by the Sessions Court.

The learned senior counsel appearing for the applicant placed much emphasis on the contention that there is nothing to link the applicant Shrikant Malani 3.BA.3433.2021.doc with the activities that led the registration of the offences under the NDPS Act. In that context, the learned SPP has placed much reliance on statements of the said witnesses Sandeep Bhalotia, Gurmeet Deshwal and Adil Ibrahim Maniar. This Court has considered the said statements. At worst, all that can be established against the applicant, at this stage, is that he appears to have been an executive or an employee of M/s Cube Impex. He was involved with obtaining GST registrations for the said company and he may have had a role in ordering Bangles on behalf of M/s Cube Impex. Even if that be so, there does not appear to be material on record to link the applicant with the activities of concealing the contraband in the Bangles for being exported to Malaysia. It is not even the case of the investigating authority that when the consignment was recovered from Air Cargo on 31st October, 2018, the applicant was present when such recovery was made. This aspect is taken into consideration by the Sessions Court also while granting bail to accused Nos.1 and 2. 8. Thus, it becomes evident that when accused Nos.1 and 2, said to be directors or closely associated with Ms/ Cube Impex, have been granted bail of Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari Vs. State of Uttar Pradesh (supra).

In view of the above, this Court is inclined to allow the present application. This Court is informed that the passport of applicant is already deposited with the investigating authority. It is further informed that the passport of the applicant already expired in the year 2020. Considering the fact that the applicant is a foreign national, it becomes necessary that the applicant renews his passport or obtains a valid passport from the office of the High Commission of his country for being deposited with the Special Court. For that purpose, the investigating authority shall hand over the expired passport to the applicant, who shall then apply immediately for its renewal for being deposited with the Special Court.

The application is allowed in the following terms: (A) The applicant shall be released on bail in connection with NDPS Special Case No.191 of 2019, pending before NDPS Special Court, Mumbai,, on furnishing PR bond of 50,000/- and one or two sureties in the like amount to ₹

Needless to say, in case of violation of any of the aforesaid conditions, the bail granted to the applicant shall be liable to be cancelled.

It is further made clear that the observations made in this order Shrikant Malani 3.BA.3433.2021.doc are limited to the question of grant of bail to the applicant and that the Trial Court shall proceed further in the matter without being influenced by the observations made hereinabove.

The application is disposed of. (MANISH PITALE, J.) Shrikant Malani