Bombay High Court Grants Bail To Alleged Drug Supplier Booked In Cordelia Cruise Drug Raid Case

Justice NJ Jamadar observed that there were doubts regarding the substance seized from the accused, and he had undergone prolonged incarceration with little likelihood of the trial concluding within a reasonable period.

“As the identity of the sample is in the corridor of uncertainty, and the complicity of the applicant is primarily based on the seizure of the contraband from the applicant, a prima facie case to hold that eventually the applicant may not be found guilty of the offences can be said to have been made out”, the court observed.

The court also observed that while the weight attached to panch witness' testimony would be determined during trial, the extensive use of the same witness by a premier agency could potentially affect the search and seizure process.

“the Court cannot simply brush aside the fact that Adil Usmani has acted as a panch witness in so many cases. If there are concomitant circumstances, the fact that a premier agency employs the same panch witness in a number of crimes may impair the search and seizure, in a given case”, said the court.

Shaikh was arrested on October 4, 2021 by the Narcotics Control Bureau (NCB) under sections 20(b)(ii)(A), 21(b), 22(b), 22(c), 25, 27, 28, 29 and 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

Shaikh was one of the 20 persons arrested in the case including actor Shah Rukh Khan's son Aryan Khan. Out of the 20, 6 persons were not named in the charge sheet including Aryan Khan. While all other accused have been enlarged on bail, Shaikh and one other accused remained in custody.

On October 2, 2021, NCB officers allegedly seized a significant quantity of narcotics from a co-accused at the International Cruise Terminal, Green Gate, Mumbai. The co-accused implicated Shaikh as one of the peddlers. Subsequently, on October 3, 2021, a surveillance operation near Shoppers Stop Mall, Juhu Link Road, Mumbai, led to Shaikh's apprehension.

During a search, NCB officials allegedly found two transparent zip lock polythene pouches consisting of 2.5 gms tablets purported to be Ecstasy pills (MDMA) and 54.3 gms off white crystalline powder purported to be Mephedrone (MD) in Shaikh's possession, resulting in his arrest on October 4, 2021.

Shaikh approached the HC for bail after a special NDPS court rejected his bail plea.

Advocate Kushal Mor for Shaikh argued that his client had been falsely implicated and that the procedures outlined in the NDPS Act for search and seizure were not adhered to. Specifically, Mor contended that the apprisal memo did not specifically inform Shaikh the applicant that he has a legal right to be searched 'only' before the nearest Magistrate or Gazetted officer. Additionally, he raised concerns regarding the credibility of the panch witness and alleged that he is a stock witness of the NCB.

Mor claimed that there was non-compliance of section 52A of the NDPS Act and highlighted the delay of almost two months in drawing the samples, questioning the safe custody of the seized substance. Further, the CA report indicates that the sample which was received for analysis contained brown powder instead of white powder allegedly recovered from the possession of the applicant, he submitted.

Special Public Prosecutor Shreeram Shirsat asserted that the procedures were followed diligently and that Shaikh's involvement was supported by evidence.

The court observed that the apprisal memo from the NCB adequately informed the suspect of their right to request a personal search before the nearest Magistrate or Gazetted Officer, as mandated by Section 50 of the NDPS Act. Although the memo did not explicitly include the word 'only,' the court held that the word was not required to be mentioned.

Regarding Adil Usmani's role as a stock panch witness for the NCB in numerous cases, the court acknowledged the potential implications of such frequent involvement.

Noting a delay between seizure and inventory, the court underscored the significance of this interval, particularly in light of discrepancies between the description of the seized contraband and the sample received for analysis by the CFSL.

Citing the prolonged period of incarceration without a realistic prospect of an expeditious trial, the court emphasized the right to speedy trial guaranteed under Article 21 of the Constitution.

Consequently, the court granted bail to Shaikh on the condition of furnishing a personal bond of Rs. 1 lakh and sureties of the same amount, with instructions to attend trial court proceedings regularly.

Advocates Kushal Mor, Tanvir K. and Apoorv Srivastava represented the Applicant.

SPP Shreeram Shirsat a/w. Advocate Tanvi Mate represented the Union of India.

APP Supriya Kak represented the State of Maharashtra. 

Case no. – Bail Application No. 4047 of 2023

Case Title – Abdul Kadar Shaikh v. Union of India

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