IMPORTANT POINT
The judgment establishes the importance of substantial probable causes and conscious possession in determining guilt under the NDPS Act.

JUDGMENT :

P.C.

1. The applicant is one of the four accused, who seeks her release on bail in connection with alleged offences punishable under Sections 8(c) r/w 20(b)(ii)C, 27A and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

2. The prosecution case in brief goes like this.

3. Pursuant to a secrete information received by the Narcotics Control Bureau (NCB) that two Indian nationals namely Aftab Ail Hishamoddin Shaikh (Aftab), Sabir Ali Azhar Sayyed (Sabir) are travelling from Hazarat Nizamuddin to LTT, Kurla, Mumbai by Train No.02172 in Coach No.B9, seat nos. 51 and 57 along with substantial quantity of Narcotics Drugs in their luggage trolley bag.

4. When the said train reached LTT, Kurla, Mumbai on 12th December 2020, the officials of the respondent – NCB accosted Aftab and Sabir whose description matched with the information received by it. The train arrived around 22:45 hours on Platform No.2. Aftab and Sabir were accosted when they were about to alight from B9 coach along with the four ladies and two children with two trolley bags. It is alleged that accused - Aftab had a red and maroon colour Italian Tourist trolley bag while accused – Sabir had a brown colour Elegant company trolley bag.

5. During interrogation of those two persons, the raiding team noticed four ladies and two children accompanying the two accused namely Shameem Bano Gulam Qureshi, Nilofer Korabu, Yasmin Iqbal Payak, S. Tahmeena Sabir Ali Sayyed, Sayyad Sidra and Sayyad Sidiya.

6. During search of a bag carried by accused – Aftab, the team noticed dark coloured round shape substance purported to be Charas weighing 3.095 kgs. Upon searching another bag, the team noticed cylindrical shaped dark brown substance purported to be Charas weighing 3.531 kgs. The contraband was seized under the panchanama. All the accused were served with a summons under Section 67 of the NDPS Act. Accused nos. 1 and 2 namely Aftab and Sabir were placed under arrest. Statement of the applicant was recorded and she was also placed under arrest.

7. After investigation, respondent filed a chargesheet in the Special Court against all the four accused under Sections 8(c) r/w 20(b)(ii)C, 27A and 29 of the NDPS Act. The applicant preferred an application for bail before the Sessions Court, Mumbai which came to be rejected on 8th November 2021 and, therefore, now she has approached this Court.

8. I heard Mr. Sayed, learned Counsel for the applicant as well as Mr. Shirsat, learned Special Public Prosecutor for the respondent at a considerable length.

9. At the outset, Mr. Sayed would argue that the applicant being a poor lady has been made a scapegoat by rest of the accused. She is innocent and was unaware as to how she was lured to accompany them to Hazarat Nizamuddin. She was paid petty amount of Rs.5,000/-. He would argue that the information note of the NCB does not indicate whether the applicant, in fact, is a co-traveller with the accused since there is no proof in the form of train ticket or any other material in the form of reservation chart indicating that the applicant did travel with the co-accused.

10. The contraband was found from the possession of accused – Aftab and Sabir and, therefore, there is no material to connect the applicant with the alleged crime. The Counsel would also invite my attention to the statement of one Sayyad Masur Hasan @ Firoz, who had stated in his statement under Section 67 of the NDPS Act that the amount of Rs.3 lac, which he had given to the applicant were in fact toy currency notes. Mr. Sayed would argue that the applicant was unaware of this fact also. As such, he submits that since the contraband has not been recovered from the actual and conscious possession of the applicant as well as the fact that the applicant being an illiterate lady is unable to understand English language, she was totally ignorant of the entire proceedings conducted by the respondent in English language.

11. It is contended that since the accused no.4