The court ruled that reliance on inadmissible co-accused statements cannot sustain a conviction, leading to the grant of bail under the NDPS Act.

JUDGMENT :

[MILIND N. JADHAV, J.]

1. Heard Mr. Ponda, learned Sr. Advocate for Applicant in BA 3846/2024; Mr. Setalvad, learned Sr. Advocate for Applicant in BA 4731/2024; Mr. Munde, learned Special P.P. for Respondent; Mr. Dedhia & Ms. Bajoria, learned APP for State. This common judgement will determine and dispose of both aforesaid Bail Applications.

2. Applicants - Accused Nos. 2 & 4 have filed the present Application for regular bail under Section 439 of the Code of Civil Procedure, 1973 (for short, "Cr.P.C.") in connection with F. No. SD/INT/INV/NCCP-01/2023-24 R & I for the offences punishable under Sections 8(c) r/w 21(a), 22(c), 23(a)(c), 27A, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "NDPS"). Both Application are heard and decided together due to commonality of facts and for brevity. They arise in the same crime.

3. The case of prosecution in a nutshell is that accused No.3 booked a parcel from Netherlands containing certain contraband in the name of accused No.1. The parcel was intercepted by the officers of Respondent based on specific intelligence received by Preventive Officer of NCCP indicating possibility of MDMA,[A Narcotic Drug and Psychotropic Substance listed at Sr. No. 134 of the Table as per clause (viia) of Section 2 of the NDPS Act having ‘small quantity’ as 0.5 gm and ‘commercial quantity’ as 10 gm.]tablets being smuggled to India vide the parcel bearing tracking No.RT56082NL at Foreign Post Office, [“FPO”], Mumbai. It contained two bags of contraband which tested positive for 45 grams of MDMA and 0.64 grams of Cocaine,[A Narcotic Drug and Psychotropic Substance listed at Sr. No. 27 of the Table as per clause (viia) of Section 2 of the NDPS Act having ‘small quantity’ as 2 gm and ‘commercial quantity’ as 100 gm] respectively.

4. Upon attaining satisfaction with regards to presence of prohibited substances in the parcel, a team led by PO Naveen Kumar was directed to conduct controlled delivery of the said contraband which failed twice between 21.11.2023 and 28.11.2023. On 29.11.2023, a phone call was made by accused No.4 to the FPO asking the parcel to be handed over to his representative upon furnishing a copy of Aadhar card of the addressee / accused No.1, this request was denied. Subsequent to the aforesaid, on 30.11.2023 accused No.1 himself reached the FPO to collect the parcel where he was apprehended. When inquired about any other person accompanying him, he pointed towards accused No.2 who was walking on the street near the FPO. This led to detention and subsequent arrest of accused No.2 and was discovered that accused No.2 shared the photograph of the vehicle registration number of a government vehicle parked outside the FPO with accused No.4 via WhatsApp on that date. Case of prosecution is that accused No.2 was sent by acused No.4 for survellience of accused No.1. According to prosecution, accused No.4 is the mastermind behind the smuggling of the contraband parcel.

5. Mr. Ponda, learned Senior Advocate appearing on behalf of Accused No.4 – Applicant in Bail Application No.3846 of 2024 would submit that Applicant has neither booked the package nor the package was addressed in his name. He would submit that he was not even present at the spot where trap was set up and at the highest his remote connection in the case is only limited to the allegation that he had contacted the postman to explore the possibility of the package being handed over to his person in the absence of the addressee (accused No.1). He would submit that the Applicant made the following phone call upon the instance of his neighbor (accused No.3) who booked the parcel. He would submit that Applicant was completely unaware with regards to the contents of the parcel. He would further submit that allegation that accused No.2 had shared a photograph with him of a government vehicle on WhatsApp cannot conclude that the Applicant had knowledge of the crime and connived in its execution. He would pray