The court emphasized the importance of establishing a prima facie case and considering criminal antecedents under the NDPS Act when deciding on bail applications.

JUDGMENT

AVINASH G.GHAROTE, J. - Heard Mr. Bhangde, learned counsel for the applicant and Mr. Damle, learned APP for the non-applicant/State.

2. The applicant has been arraigned for the offence punishable under Ss. 20, 29 and 27-A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act") in Crime No.307 of 2020.

The incident is dtd. 21/7/2020. The applicant has been arrested on 4/3/2021. The charge-sheet has been filed on 18/8/2021.

3. Mr. Bhangde, learned counsel for the applicant submits, that merely on the basis of suspicion, on the statement of one Kanhaiyya Dhurve, who claims, that at the instance of the applicant, he had transferred a sum of Rs.5,000.00 in the account of the accused No.1 Sheikh Ansar Sheikh Israil, the applicant has been made an accused in the present matter. The other instance is the statement under Sec. 27 of the Indian Evidence Act of the above accused No.1, which states, that he had received Rs.10,000.00 from the applicant in cash for purchase of Ganja. He submits, that the statement of the accused No.1, who is the co-accused in the matter, is inadmissible and cannot be used against the applicant. He further submits, that the person in whose house the two bags of Ganja totally admeasuring 20.770 kg had been seized namely Aarju Deshbhratar has not been made an accused at all. That apart, he submits, that the other co-accused namely Dipesh Kasadekar and Sheikh Salim have already released on bail by the learned trial Court and the role of the applicant, is identical to that of Sheikh Salim of having given money for the purchase of the contraband. He therefore submits, that the applicant considering the above is required to be released on bail.

4. Mr. Damle, learned APP for the non-applicant/State, opposes the application and invites my attention to the statement of Kanhaiyya Dhurve (page 134) to contend that at the instance of the applicant, a sum of Rs.5,000.00 was transferred in the account of accused No.1 and the transfer was for the purpose of purchase of the said contraband. He further submits, that there are criminal antecedent of the applicant, and therefore, the application needs to be rejected.

5. The charge-sheet indicates, that on 21/7/2020, on the basis of secret information being recovered by the concerned Investigating Officer, raid was conducted in the house of one Aarju Deshbharatar, in which, two bags containing Ganja were found in the bathroom of the said house, the total weight of which was 20.770 Kg. It is also pertinent to note that the said Aarju has not been made the co-accused in the matter, but is a witness. The applicant was arrested on the basis of the statement of the accused no.1 on 4/3/2021 on the allegation that Rs.5,000.00 had been transferred to the account of the accused No.1 for the purpose of purchasing the said contraband. The charge-sheet indicates, that there is no recovery from the applicant of any contraband, the statement of Kanhaiyya, would at the most indicate that an amount of Rs.5,000.00 was transferred at the instance of the applicant in the account of the accused No.1. In fact the transfer of his amount as per the statement of Kanhaiyya is in the account of some unknown person and not the accused no.1. In view of the fact, that Sec. 27A of the NDPS Act has been invoked, it was necessary for the State to have establish the case regarding the transfer of money from the applicant to the person to whom it was transferred and the connection of the person to whom the money was transferred with the accused no.1 who is claimed to have purchased the contraband. No doubt, Sec. 37 of the NDPS Act is attracted, however, since the charge-sheet has already been filed, unless the link between the applicant and the person to whom he is alleged to have transferred the money and his link with the accused no.1 is established prima facie the involvement of the applicant in the aforesaid offence would be doubtful. The contention that Rs.10,000.00 ha