ORDER
1. This criminal application is filed by the present petitioner against the order dated 15th June, 1992 passed by the Judge, N.D.P.S. Special Court, (Court No. 24), Greater Bombay, in Bail Application No. 260 of 1992 and Bail Application No. 254 of 1992 in Remand Application No. 72 of 1992 (arising out of Narcotic Cell, K. Division, C.R. No. 17 of 1992).
2. By the aforesaid judgment and order, the trial Court rejected the application for bail preferred by the present petitioner who is original accused No. 3. The only question which I have to decide is as to whether the present petitioner is entitled for the grant of bail under Section 37 of the N.D.P.S. Act of 1985.
3. The petitioner in this case is Ph.D. in Organic Chemistry and is resident of Vapi. The petitioner was arrested at Vapi in Gujarat on 12th April, 1992. It is the case of the prosecution that on the basis of information which they received they carried out raid in godown No. 26, Building, Bhangwadi, Kalbadevi Road, Bombay. The aforesaid raid was carried out on 10th April, 1992 between 11.40 hrs. and 15.15 hrs. In the aforesaid raid the prosecution found 49 gunny bags containing about 1276.750 kgs. of Mathaqualone. Police thereafter arrested one Sadhuram Maruti Mardekar, a godown-keeper. It is further alleged by the prosecution that accused No. 2 Bachubhai Chimanlal Shah was also found on the loft in the godown with the card-board box containing 15 kgs. of mandrax tablets. The said Bachubhai Shah was also arrested. Thereafter panchanama was drawn and the contraband found as aforesaid was seized and returned to Narcotic Cell office on 16th August, 1992. Diary entry to that effect was made and C.R. No. 17 of 1992 was registered. It is the case of the prosecution that the statements made by the panchas also corroborate the panchanama. Both Sadhuram Maruti Mardekar and Bachulal Chimanlal Shah were produced before the Metropolitan Magistrate at Esplanade Court and they were remanded till 13-4-1992.
4. As per the prosecution, during the course of the investigation, statement of Mukadam Narayan D. Dalvi was recorded. In his statement the said Shri Dalvi stated that accused No. 2 Bachulal approached him and instructed to take delivery of gunny bags containing pharmaceutical drugs from the godown of Surat-Ahmedabad Transport Company and gave him transport chalan and further directed him to store the said drugs in some godown. The said Mukadam introduced godown keeper Sadhuram Mardekar, and Bachubhai Shah, accused No. 2 agreed to pay Re. 1/- per day per bag to the godown keeper for allowing the said storage facility. Thereafter Mukadam Dalvi deputed one Hamal Sadhuram Chikane to take the delivery of the goods in 12 gunny bags from the transport company and deposit the same in the godown belonging to Sadhuram Mardekar.
5. It is the case of the prosecution that the deliveries of gunny bags were taken on 4-5 occasions on different dates somewhere in the month of February, 1992 and all the said gunny bags were stored in the godown belonging to Sadhuram Mardekar. Initially accused No. 2 pretended that the gunny bags contained pharmaceutical drugs and on every occasion at the time of delivery made it a point to remain present in the godown.
6. The prosecution also recorded the statement of Hamal Sadhuram Mahadeo Chikane. He stated that as per the instructions of accused No. 2 Bachubhai Shah he first took delivery of 12 gunny bags from the godown of Surat-Ahmedabad Transport Company and deposited the same in the godown of Sadhuram Mardekar. Further he stated that in the month of February, 1992 also he took the delivery of similar types gunny bags on there to four occasions and deposited them in the godown belonging to Sadhuram Mardekar. He has also stated that he was given to understand that the goods of which he had taken the delivery and deposited in the godown, were pharmaceutical drugs.
7. Further it is the case of the prosecution that on 12th April, 1992 during investigation, accused No. 2 led the police and panchas to Vapi in a factory named and styled as Harshad Chemicals situated at G.I.D.C., Vapi and pointed out the present petitioner as the owner of the factory. Before proceeding to Vapi, the police drew panchanama and left Bombay at 1.30 hours at night. They reached Vapi in the morning at 9 a.m. and it is the case of the prosecution that when they searched the factory belonging to the present petitioner, they found in the said search about 26.500 kgs. of Mathaqualone which was seized under panchanama. Dr. Rohit Desai, the petitioner, was thereafter arrested at 11.45 hours and was thereafter brought to Bombay.
8. The prosecution also recorded the statement of one Vasant Ganpat Lotekar, Care-taker of the factory where the raid was carried out and who was assisting the present petitioner. At Vapi the police also recorded the statement of Sabir Shaikh Ali Shaikh, the godown clerk of Surat-Ahmedabad Transport Company at Vapi and during the course of investigation found in the register maintained by Surat-Ahmedabad Transport Company at Vapi four different dates in the month of February, 1992 showing 54 gunny bags despatched from Vapi by one consigner party Jaideep Chemicals. The case of the prosecution is that it is by this fake name Jaideep Chemicals arrangement was made by the petitioner to transport these goods from Vapi to Bombay. The investigating party returned to Bombay on 12th April, 1992 and thereafter made diary entry of reaching Bombay at 21.30 hours. In the said diary entry the petitioner was show as arrested. The police also recorded the statement of the panchas who accompanied them from Bombay to Vapi. According to the prosecution the said statements made by the panchas corroborate the panchanama.
9. Police also recorded the statement of Shevantilal, J. Shah, who is the owner of chemical factory at Vapi. He is known to the present petitioner for last 7-8 years. The present petitioner once told this Shevantilal Shah that the petitioner was undergoing losses in his business and requested Shevantilal to give some chemical manufacturing job. Being a childhood friend he introduced the petitioner to Bachubhai Shah, accused No. 2.
10. Police also recorded the statement of one Abesau Khan Mohd. Hussain Khan (hereafter referred to as ‘Khan’ for the sake of brevity), Clerk at the office of Surat Ahmedabad Transport Company. In his statement he has stated that Jaideep Chemicals at Vapi had delivered goods on four different occasions in the month of February, 1992 and in all 54 gunny bags were delivered. Through this witness Khan the police recorded Chalans showing therein the transport of the material from Vapi to Bombay.
11. Police also carried some investigation by going to Baroda but since that part of the investigation is not material from the point of view of deciding this bail application, I am not referring to that portion of the investigation.
12. On the basis of these statements recorded by the police and on the basis of the documents recovered by the police during the course of the investigation, it is contended on behalf of the prosecution that the petitioner-accused is guilty under sections 8(c), 21 and 29.
13. Thereafter the present petitioner made application before the trial Court for the grant of bail. The same was rejected. The trial Court came to the conclusion that the prosecution has got sufficient material to show prima facie that the petitioner has committed offence under the N.D.P.S. Act.
14. The aforesaid decision of the trial Court is subject-matter of challenge in this criminal application.
15. Shri P. R. Vakil, learned Counsel on behalf of the petitioner, contended that the petitioner is entitled for the grant of bail, as according to him the case of the present petitioner comes within the four corners of Section 37 more particularly Section 37(1)(b)(ii) of the N.D.P.S. Act. Section 37 of the N.D.P.S. Act is as under :-
“37. Offences to be cognizable and non-bailable. – (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), –
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for an a term of imprisonment of five years or more under this Act shall be related on bail or on his own bond unless –
(i) the public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that be is not likely to commit any offence while on bail.
(2) The limitation on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.”
16. It is contended by Shri Vakil, learned Counsel on behalf of the petitioner, that the case as alleged by the prosecution against the accused is as such that there was reasonable grounds to believe that the petitioner is not guilty of offence under the N.D.P.S. Act and that he is not likely to commit any offence while on bail. Shri Vakil strenuously contended that the petitioner is highly educated person carrying on the business of manufacturing chemicals at Vapi. Further according to Shri Vakil the investigating machinery has flouted several precautionary measures under the N.D.P.S. Act and, therefore, virtually the whole investigating and the result out of the said investigation is vitiated.
17. Shri Vakil further strenuously argued that in fact the police carried out search at Vapi and seized 26.500 kgs. narcotic substance and arrested the petitioner when they had no jurisdiction to do so and, therefore, in any case, according to the petitioner, the seizure of narcotic at Vapi, the panchanama and the statements of witnesses recorded at Vapi cannot be relied upon by the prosecution, as the same are without jurisdiction and, therefore, nullity. It was further contended on behalf of the petitioner that if the goods seized at Vapi and the statements and panchanama recorded at Vapi are excluded from the evidence gathered by the prosecution, then there is nothing on record to connect the petitioner to the contraband seized at Bombay at Kalbadevi godown belonging to Sadhuram Mardekar on 10th April, 1992.
18. Secondly it was also contended on behalf of the petitioner that before proceeding to Vapi for investigation the police knew full well that they were going to carry raid at Vapi and, therefore, the police ought not to have taken the panchas from Bombay to Vapi and used them as panch witnesses in the panchanama carried out at Vapi. According to Shri Vakil, a bare reading to Section 51 of the N.D.P.S. Act read with Section 100 of Criminal Procedure Code and with Section 166(4) of the Criminal Procedure Code makes it clear that the police ought to have used respectable persons around the locality where the factory was situated. By not following the aforesaid principle as enunciated by the aforesaid sections, it is rather difficult to rely on the recorded statements of these witnesses.
19. Lastly it is also argued on behalf of the petitioner that according to the petitioner it is one Shri Shevantilal who is the main culprit and the petitioner is made scapegoat and falsely involved in place of the said Shevantilal.
20. Today, in reply in the absence of Shri Vakil, Smt. Rao, learned Counsel also appearing on behalf of the petitioner, argued that during the course of the investigation two statements are also recorded of the witnesses which show that in fact the raid was carried out on 10th April, 1992 and not on 12th April, 1992. Before going further as regards other points in the arguments advanced on behalf of the petitioner, I will like to deal with this point first. According to me, there is no substance in the argument of Smt. Rao as regards the statements of these two witnesses, the reason being these statements are made much subsequently by these witnesses who, according to the prosecution, are either relations or neighbours. Further, according to the prosecution, the said statements are recorded since three affidavits were filed in the trial Court at the time of pressing the bail application. When the matter came up before the High Court all interim stage this Court directed to record the statements of these two witnesses who had filed these affidavits, in pursuance of which statements were recorded by the police. In the said statements the affiants stated what they had already stated in their affidavits.
21. I will first deal with the argument advanced by Shri Vakil for the petitioner as to the propriety on the part of the police in taking panch witnesses from Bombay to Vapi, especially when the police knew full well that the raid was to be carried out at Vapi. It was contended on behalf of the petitioner that whenever search is to be made in a particular locality as per the provisions of the Criminal Procedure Code the police should choose or select panch witnesses who are residents of the locality where the raid is to be carried out and also see that such witnesses are respectable persons. It was contended that in view of Section 51 of the Narcotic Act, the provisions of Criminal Procedure Code shall apply in so far they are not inconsistent with the provisions of the N.D.P.S. Act in respect of the warrants issued, arrest and searches and seizure made under this Act. In view of this provision in the N.D.P.S. Act, it is contended on behalf of the petitioner that the principles of Section 100 of the Criminal Procedure Code read with Section 166(4) of the Criminal Procedure Code are applicable in the fact and circumstances of the present case. Since the police knew full well that they were going to carry out the search at Vapi beyond the jurisdiction of the State of Maharashtra, the police, according to the petitioner, ought to have selected panchas from Vapi. Alternatively it is also argued on behalf of the petitioner that in any case the police could have taken one panch from Vapi so as to show the bona fide approach in investigating this case. By not following this procedure, it is difficult to reply on the panchanama scribed on 12th April, 1992 and in fact no reliance should be kept on the statements made by the panch witnesses.
22. On the other hand, it was contended by Shri Lambay, learned Additional Public Prosecutor, on behalf of the respondent, that it was while recording the panchanama accused No. 2 Bachubhai Shah made the statement that methaqualone which was found in the godown of Sadhuram Mardekar at Bombay was manufactured at Vapi by one Rohitbhai i.e. the present petitioner in his factory and then the police decided to carry out the further investigation at Vapi. By the time the panchanama was completed, it was already 12.50 at night and, therefore, the police decided to take panchas from Bombay. Further it is contended on behalf of the petitioner that the statements disclosed by accused No. 2 was that the goods which were found at Kalbadevi godown were manufactured at Vapi in the factory owned by the present petitioner and, therefore, the police party went towards Vapi only from the point of view of carrying out further investigation at Vapi and they were not knowing as to whether they will get some narcotic at Vapi. Since it was late night and since the police party was going at a different place unknown to them they were also not knowing as to whether they will get the co-operation from the local persons and, therefore, the police, in these circumstances, carried two panchas from Bombay. Therefore, it was contended by Shri Lambay that it was only in order to see that the whole investigation is complete as regards whatever has been found at Bombay, the police party proceeded to Vapi and, therefore, the whole act of taking panch witnesses from Bombay in the aforesaid circumstances cannot be called as a mala fide intention on the part of the investigating machinery. According to me, merely because two witnesses were taken from Bombay to Vapi for carrying out the further investigation at Vapi cannot vitiate the investigation, more particularly after taking into consideration the time and circumstances in which the said two witnesses were taken from Bombay to Vapi. Therefore, the prosecution is within its limits to rely upon the panchanama made by these witnesses and the statements made by these witnesses in respect of the discovery of narcotic which was found at Vapi.
23. With this, I now proceed to the important argument advanced by Shri Vakil, learned Counsel appearing on behalf of the petitioner. Shri Vakil strenuously contended that on 12th April, 1992 at mid-night the police proceeded to Vapi. They proceeded to carry out the raid at the factory belonging to the petitioner at Vapi. They knew full well that the petitioner’s factory at Vapi was beyond the jurisdiction of the State of Maharashtra and, therefore, they had no jurisdiction to carry out the raid at a place where they had no jurisdiction. It is an admitted position that when this raid carried out, help of local police at Vapi was not taken nor were they informed about the said raid even after the discovery of narcotic at the factory premises of the petitioner as alleged by the prosecution. Now the only question is as to whether such discovery and the statements and the panchanama recorded during the course of such discovery can be read as evidence or is to be discarded on the ground that the police had no jurisdiction to carry out this investigation. Shri Vakil strongly contained that not only the police carried out the raid beyond the circumscribed limit of the State of Maharashtra but they had unauthorisedly, illegal arrested the accused and brought him to Bombay and, therefore, whatever done by the police after entering at Vapi till they returned to the State of Maharashtra cannot be a evidence about the possession of 26.500 kgs. Methaqualone. Shri Vakil further contended that if the said evidence is not taken into consideration, then there is nothing on record to convict the accused for possession of the said 26.500 kgs. of Methaqualone.
24. Further it was argued on behalf of the petitioner that as regards the recovery of Methaqualone at Bombay in the godown belonging to Sadhuram Mardekar, there is nothing on record to connect the present petitioner to the said recovery and, therefore, according to Shri Vakil, the case of the present petitioner comes within the purview of Section 37(1)(b)(ii) of the N.D.P.S. Act. According to him, this is a case where there are reasonable grounds for believing that the petitioner is not guilty of the offence and also that he is not likely to commit any offence while on bail. This being the position, it was submitted on behalf of the present petitioner that this is a fit case wherein bail should be granted irrespective of the fact that charges under the N.D.P.S. Act, where the punishment is of more than ten years, are alleged against the petitioner.
25. As against the aforesaid argument, Shri Lambay, the learned Addl. Public Prosecutor, contended that the police while investigating had not committed any breach of any of the mandatory provisions of the N.D.P.S. Act. On the contrary it was submitted on behalf of the State that the police took all the measures to see that the provisions as stated in the Act are followed. Secondly it was contended by Shri Lambay that at the time when the police decided to go to Vapi after recording the statement of accused No. 2, they never knew that in the factory at Vapi belonging to the present petitioner they may find narcotic. According to Shri Lambay, the police party proceeded to Vapi in the mid-night between 11-4-1992 and 12-4-1992 only with the idea to complete the investigation of what has been found at Bombay in the godown of Sadhuram Mardekar. This being the position, the police particular case were within their limits to go to Vapi, the place which is beyond the jurisdiction of State of Maharashtra only with the purpose of carrying out further investigation in respect of narcotic which was found at Bombay. To support his contention Shri Lambay has relied upon the statement of accused No. 2, which is given in Hindi in the panchanama, which is as under :-
“Maine Methaqualone sevya, Vapi mai rahanewale Rohitbhai se banwake liya tha wah Rohitbhai aur uski chemical factory mai dikhata hun, mere sath chaliye.”
In the aforesaid statement accused No. 2 stated that the Methaqualone which was found in the godown was manufactured by the petitioner in his factory at Vapi. After hearing this statement, if the investigating machinery decided to go to Vapi, according to me, they were within their limits to search the premises at Vapi only from the point of view of getting some information about the manufacturing of methaqualone found in Bombay. Therefore, it cannot be said that when the police party carried out the search on 12th April, 1992 in the morning in the factory of the petitioner they carried out the said search illegally without any jurisdiction and, therefore, it cannot be said that the investigation carried out at Vapi by the police was illegal.
26. The next question is that once during the course of search the police found 26.500 kgs. of Methaqualone in part of the factory premises, whether they were justified in bringing the same to Bombay without going to Vapi Police Station and whether the police were justified in bringing the petitioner to Bombay in respect of possession of 26.500 kgs. Methaqualone found in Vapi. According to Shri. Vakil, learned Counsel for the petitioner, even presuming that such recovery was made at the factory, since the said narcotic drugs were in possession of the petitioner, even according to the prosecution, at Vapi, at the highest it can be said that the offence of possessing narcotic under section 8(c) of the N.D.P.S. Act was committed at Vapi and, therefore, Bombay police have no jurisdiction to investigate and prosecute the petitioner for the alleged offence.
27. On the other hand, Shri Lambay, learned Addl. Public Prosecutor, contended that it is the case of the prosecution that all the accused persons entered into conspiracy of manufacturing Methaqualone at Vapi, transporting the same from Vapi to Bombay and, therefore, since the narcotic material which was found at the factory belonging to the petitioner at Vapi, being part of the conspiracy, Bombay police had jurisdiction to investigate and prosecute the petitioner.
28. On this point I heard at length the arguments advanced by both the sides and after hearing these arguments, I intend to express my opinion only from the point of view of deciding this bail application without going into the legal niceties as argued by both the sides. At this stage I do not wish to express my opinion one way or the other as to whether in respect of the offence of possession of 26.500 kgs. of Methaqualone in the factory at Vapi, the Vapi Court has jurisdiction or Bombay Court has jurisdiction. According to me, the police party which proceeded from Bombay to Vapi had jurisdiction to carry out the investigation even at Vapi to conclude the investigation which commenced at Bombay after the discovery of Methaqualone in the godown of Mardekar. After reaching at Vapi in the search in some part of the factory premises belonging to the petitioner 26.500 kgs. of Methaqualone was found and after taking into consideration the quality of the substance and the inscription on the packing material the investigating machinery was of the view that 26.500 kgs. Methaqualone found at the factory was same or similar to that of the material which was found in the godown of Mardekar. This being the evidence to support the statement made by accused No. 2, the Bombay police were justified in sealing that material and bringing it back to Bombay in any case as a piece of evidence to support the statement made by accused No. 2. Taking this view of the matter, according to me at this stage it cannot be said that in respect of 26.500 kgs. of Methaqualone found in the factory of the petitioner the Bombay police had no jurisdiction or authority to bring it back to Bombay. Whether the offence of possession of the said 26.500 kgs. Methaqualone is subject to the jurisdiction of Vapi Court or Bombay Court can be decided subsequently depending upon whether there is sufficient material to show as to whether there was conspiracy between all the accused as alleged by the prosecution. However, in any case since the police had authority to seize the material of 26.500 kgs. Methaqualone at Vapi and bring it back to Bombay, according to me, the prosecution can rely on the panchanama made at Vapi on 12th April, 1992 and also the statements of the panch witnesses and other witnesses made at Vapi.
29. The next question is, after taking into consideration the panchanamas and depositions of panch witnesses and other witnesses, whether I am satisfied that there is a reasonable ground for believing that the petitioner is not guilty of the offence. According to me, in this case there is sufficient material to show that there is prima facie case against the petitioner as alleged by the prosecution. Accused No. 2 Bachubhai Shah made statement after the recovery of Methaqualone from the godown of Mardekar that the Methaqualone found in the godown was manufactured by the petitioner at his factory at Vapi. When the police visited the factory at Vapi, 26.500 kgs. of Methaqualone was found in some part of the factory, when the factory was searched. Vasant Ganpat Lotekar, the Care-taker who was assisting the petitioner in the factory, stated in his statement as to how he was carrying out the work as per the directions of the petitioner as he had no personal knowledge about the chemical contents. He has also stated in his statement that in the months of October and November, 1991 some drugs were to be manufactured and the petitioner gave the formula about the contents and the proportions for mixture to be put in the granual-lating machine and brown coloured granuels cum nuddles called as Shevayas were manufactured in the factory. The same were packed properly in gunny bags covered with polythene bags. He had also given the weight of the said material and further stated that the said material was sent by the petitioner to Bombay by Surat-Ahmedabad Transport Company.
30. Further the police also recorded the statement of one Sabir Shaikh, Godown-Clerk of Surat-Ahmedabad Transport at Vapi. From the register he has given the details as to how certain chemicals were sent under the name of Jaideep Chemicals from Vapi to Bombay by their transport company and gave the details about the goods transported on various dates.
31. Police also recorded statement of one Ahesan Khan, who is Assistant in the Transport Company at Bombay, who has shown the chalans corresponding to the goods despatched from Vapi to Bombay. Chemical Analyser’s report shows that the goods found at Vapi and at Bombay are of same quality.
32. Police also recorded statement of Sadhu Mahadeo Chikane, a Hamal, who has stated as to how the delivery was taken from the transport company and the goods were deposited at the godown of Mardekar at the behest of accused No. 2.
33. Lastly, the police also recorded statement of Shevantilal Shah, who stated the circumstances in which he had introduced accused No. 3 to accused No. 2.
34. After taking into consideration this evidence and after taking into consideration the chalans, according to me there is sufficient evidence on record to come to a conclusion that the prosecution has collected evidence to prima facie show the involvement of the petitioner in the alleged offences under the Narcotic Act. In any case this is not a case wherein this Court can be said to have been satisfied that there are reasonable grounds for believing that the petitioner is not guilty of the offence.
35. Before I conclude the judgment, I am placing on record my deep appreciation for the assistance rendered by the Counsel on both sides in deciding this criminal application. Particularly, I place on record that Shri R. F. Lambay, the learned Additional Public Prosecutor who has appeared for the respondent-State and its officers in this criminal application has rendered commendable assistance both on facts and law while conducting this criminal application. This criminal application has been heard on six working days before me and the Court record also shows that the same was heard before my brother Judge, Shri Daud J. for one working day, though ultimately Shri Daud J. passed the order to the effect that “Not to be treated as part heard.” Bearing in mind the unusual importance to the present criminal application for bail in a criminal case under the N.D.P.S. Act and the marked industry and ability which has been displayed by Shri Lambay, Addl. Public Prosecutor, I recommend the State Government in Law and Judiciary Department to sanction him the payment of special fees at the rate of Rs. 1000/- per working day.
36. In view of the aforesaid reasoning given by me, I confirm the decision given by the Judge, N.D.P.S. Special Court, (Court No. 24), Greater Bombay, in Bail Application No. 254 of 1992 and dismiss the application for bail filed by the present petitioner.
37. Certified copies to be supplied urgently.
38. Application dismissed.