Everybody is equal before law no celebrity or a role model enjoy any special privilege before the court of law similarly such person also does not incur any special liability when he faces law in the courts. Each case will have to be decided on its own merits irrespective of the status of the accused
[Case Brief] Rhea Chakraborty v. Union of India (Bail Application)
Rhea Chakraborty v. Union of India (Bail Application)
Criminal Bail Application (Stamp) No. 2386 Of 2020
High Court Of Judicature, Bombay
Sarang V. Kotwal, J.
October 7, 2020
Sections 8(c) read with 20(b)(ii), 22,
27A, 28, 29 and 30 of the Narcotics Drugs and Psychotropic
Substances Act, 1985
- BRIEF FACTS AND PROCEDURAL HISTORY:
- On 28.08.2020, acting on secret information, a team of NCB apprehended one Abbas Ramzan Ali Lakhani possessing 46 grams of Marijuana/Ganja at Old Kurla Gaon. The supplier’s name was revealed to be Karn Arora from whom 13gm of ganja was recovered on his arrest. Both of them revealed the name of Zaid Vilatra whose premise was searched and cash in different currencies were recovered.
- Vilatra admitted to having supplied ganja, hashish and many other psychotropic drugs to many people. In Zaid Vilatra’s voluntary statement, name of Abdel Basit Parihar (Applicant in B.A.(Stamp) No.2184/2020) as a receiver of Ganja/Marijuana, was revealed. Abdel Basit Parihar’s statement was recorded. He stated that he purchased and sold Marijuana/ Ganja through Zaid Vilatra and others.
- He used to supply drugs from Zaid Vilatra and one Kaizan Ebrahim as per instructions of Showik Chakarborty (Applicant in B.A.(Stamp) No.2387/2020). He was in contact with Samuel Miranda (Applicant in B.A.(Stamp) No.2205/2020) and Showik Chakarborty. As per the NCB’s case, Abdel Basit Parihar is an active member of a drug syndicate connected with high-profile personalities and drug suppliers. Abdel Basit Parihar was arrested on 3.9.2020. In his voluntary statement, Abdel Basit Parihar disclosed the name of Kaizan Ebrahim as a supplier of Charas/Hashish.
- Based on disclosure by Abdel Basit Parihar; Kaizan Ebrahim’s premises were searched during which NCB recovered 0.5 Grams of dark brown substance suspected to be Hashish/Charas. Kaizan Ebrahim’s voluntary statement was recorded and he was arrested.
- Kaizan Ebrahim in turn disclosed that Showik Chakarborty used to direct him to deliver contraband to Dipesh Sawant (Applicant in B.A.(Stamp) No.2201/2020). Voluntary statements of Kaizan Ebrahim and Abdel Basit Parihar revealed the name of Samuel Miranda.
- Samuel Miranda’s voluntary statement was recorded and he was arrested on 4.9.2020. Showik Chakraborty’s voluntary statement was recorded wherein he has allegedly disclosed that Abdel Basit Parihar provided drugs to Dipesh Sawant through Kaizan Ebrahim. On the basis of this material, Showik Chakraborty was arrested on 4.9.2020.
- Dipesh Sawant’s name was revealed in the statements of Kaizan Ebrahim and Abdel Basit Parihar. Dipesh Sawant’s statement was recorded. He has stated that he got contact details of a Weed and Hashish dealer from Showik Chakraborty and Kaizan. Even Dipesh Sawant was arrested on 5.9.2020.
- Anuj Keshwani’s statement was recorded and he was arrested on 7.9.2020. The affidavit-in- reply further mentions that from Anuj Keshwani, 585 grams of Charas, 270.12 grams of Ganja, 3.6 grams of THC and 0.62 grams (0.1 gram was commercial quantity) of LSD; apart from cash of Rs.1,85,200/- were recovered.
- It was NCB’s case that Showik used to facilitate drugs through Abdel, Kaizan and Zaid. Furthermore, Samuel Miranda revealed that drugs were supplied to Sushant Singh Rajput on behalf of the applicant Rhea Chakraborty and Showik Chakraborty. It was the case of NCB that during her statement, the Applicant revealed about her involvement in procurement of drugs and financing of illicit drug dealing. Her statement also mentioned instructions given to Samuel Miranda, Dipesh Sawant and Showik Chakraborty in this regard.
- Thus, according to NCB, the Applicant was an active member of a drug syndicate connected with drug supplies. She was a prominent member of supply chain of drugs to Sushant Singh Rajput and she was handling finances also. It is, therefore, NCB’s case that the Applicant used to procure drugs for Sushant Singh Rajput and that she used to manage finances along with Sushant Singh Rajput for drug procurement. Based on this material, the Applicant was arrested on 8.9.2020.
- The NCB provided several statements from the accused and also Whatsapp chats to prove that the applicant Rhea facilitated the purchase of drugs with the help of her brother Showik on several occasions through credit card, cash and other gateways. It was also claimed that the drugs were not for her own consumption but for Sushant and that she harbored and concealed his acts actively.
- According to the Special Judge, bar under Section 37 of NDPS Act operated and, therefore, she was not entitled for release on bail. It was also observed that if she was released on bail, then she would alert others involved in the offence and that they would destroy the evidence. Hence, her bail was rejected. In this background the applicant had approached this court to grant her bail.
- ISSUE BEFORE THE COURT:
- Whether the offences alleged against the Applicant are bailable. This question needs to be decided because the Applicant is claiming her release on bail as a matter of right.
- If the offences are non-bailable, then, as to whether rigours mentioned in Section 37(1)(b) of NDPS Act are applicable.
- If such rigours are not applicable and if the offences are non-bailable then whether the Court should exercise its discretion to grant or refuse bail.
- Whether the applicant financed the illicit traffic of drugs and hence consequently whether section 27A of the NDPS Act is applicable?
- RATIO OF THE COURT
- The counsel on the behalf of the applicant argued that that no contraband was recovered from the Applicant and therefore, she cannot be connected with recovery of any commercial quantity of any contraband. She cannot be connected even with an intermediate quantity of any contraband.
- He further submitted that the evidence on record was not sufficient to prove that drugs were financed by the applicant for Sushant Singh Rajput since he did not need to ask the applicant for money for drugs. He further submitted that Rajput was already doing drugs before applicant came into his life and that there was enough proof to support this. He also argued that since the case had been assigned to CBI for investigations, NCB had no authority to detain the applicant.
- The ld. ASG, on the behalf of the respondent argued that the present case was an altogether different case from what had been assigned to CBI and that Sushant’s case was a mere angle in this case. He cited the objects and reasons of the NDPS Act and urged that court that influence of drugs should be strongly countered in every field. This court accepted this contention.
- The court observed that everybody is equal before law no celebrity or a role model enjoy any special privilege before the court of law similarly such person also does not incur any special liability when he faces law in the courts. Each case will have to be decided on its own merits irrespective of the status of the accused.
- The court further observed that under section 37(1)(b) of the Act, there should be reasonable grounds for believing that the Applicant is not guilty of such offence and the Applicant is not likely to commit any offence while on bail. Therefore, the Court will have to consider whether these two conditions are satisfied. However, these requirements are applicable only where the conditions of Section 37 mentioned in Clause (b) of Sub-Section (1) of Section 37 are applicable in the case. The Hon’ble Supreme Court in the case of Union of India Vs. Rattan Mallik alias Habul took this view.
- This court relied upon State of Punjab Vs. Baldev Singh wherein it was held that “Section 37 makes all the offences under the Act to be cognizable and non-bailable and also lays down stringent conditions for grant of bail.” This categorical statement in court’s view showed that Section 37, firstly, makes all offences nonbailable; and, secondly, also lays down stringent conditions for grant of bail. This statement was binding without any doubt on all such cases and therefore it could not be said that some provisions of NDPS Act were bailable and some were not. In fact, in the case of State of Orissa Vs. Laxman Jena Paragraph-4 of Baldev Singh’s case was treated as important and decisive.
- In the case of Director of Settlements, A.P. and others Vs. M.R. Apparao and another, it was observed that even obiter of Supreme Court is of considerable weight therefore, the applicant counsel’s contention that obiter dicta of the court cannot be binding was rejected. The court further held that Part II of the CrPC had rendered inapplicable to provisions of NDPS Act after amendment in 1989 and therefore the same would not apply.
- Rejecting the applicant’s contention that the rigours of Section 37 would only apply to sections 19, 24 and 27 if the substances were found in commercial quantity which was not the case at presnt, the court held that if the Legislature wanted to restrict application of rigours only to the offence involving commercial quantity including Sections 19, 24 & 27 there was no necessity to mention these sections specifically in Section 37. A simple sentence that rigours will apply to all offences involving commercial quantity would have served the purpose. This view was taken in Union of India Vs. Niyazuddin Sk. and another.
- The court observed that only in some of the offences where lesser punishment is provided, the rigours of bail provisions under Section 37 will not apply, but, that does not make those offences bailable. As mentioned earlier, the concept of application of rigours and the concept as to whether a particular offence is bailable or non-bailable are two different issues.
- Coming to the issue whether the applicant had financed the illicit traffic of drugs, this court held that under Section 27A of the Act, to finance is to raise money or actively support the facilitation of drugs through monetary means and not mere purchase. In Kalpnath Rai v. State, the word ‘harbour’ was defined as to give an offender shelter, food or monetary support which was yet again not the case here.
- The person who is charged with harbouring that main offender should have supplied him with shelter, food etc.; and then the next requirement is that that second person should have done this to prevent the main offender’s apprehension. In the present case, no criminal case or FIR was pending against Sushant Singh Rajput. He was residing in his own house and was spending for his own food and other necessities. At that point of time, he had no apprehension of any arrest. Therefore, the act on the part of the Applicant cannot be stretched to attract the allegation of harbouring Sushant Singh Rajput.
- If Section 27A is read in its entirety, it indicates that financing is in respect of illicit traffic through which the financer expects monetary or other returns. In the same context, Section 27A makes harbouring a punishable offence.
- If the prosecuting agency has material to show that either of these three offences are committed i.e. under Sections 19, 24 and 27, then irrespective of the quantity of the contraband, the rigours of Section 37 will apply.
- The court at last observed that since the punishment of consumption of psychotropic drugs u/s 27A was merely one year, and the punishment of the person who paid for it much higher, the construction of section 27A this way would create anomaly. Therefore, the applicant should be granted bail.
- The court finally held that there are reasonable grounds for believing that the Applicant is not guilty of any offence punishable under Sections 19, 24 or 27A or any other offence involving commercial quantity. There are no other criminal antecedents against her. She is not part of the chain of drug dealers. She has not forwarded the drugs allegedly procured by her to somebody else to earn monetary or other benefits. Since she has no criminal antecedents, there are reasonable grounds for believing that she is not likely to commit any offence while on bail.
- DECISION HELD BY COURT:
- Bail granted.
- In connection with C.R. No.16/2020 registered with the Narcotics Control Bureau, Mumbai, the Applicant is directed to be released on bail on her furnishing PR bond in the sum of Rs.1,00,000/- (Rupees One Lakh Only) with one or two sureties in the like amount. The Applicant shall deposit her passport with the investigating agency.
- The Applicant shall not leave the country without prior permission from the Special Judge for NDPS at Greater Mumbai.
- If the Applicant has to go out of Greater Mumbai, she shall inform the Investigating Officer; and shall give her itinerary to the Investigating Officer in advance.
- The Applicant shall attend the office of investigating agency on first Monday of every month between 10:00 a.m. to 11:00 a.m. to mark her presence, for a period of six months.
- The Applicant shall attend all the dates in the Court unless prevented by any reasonable cause.
- The Applicant shall not tamper with the evidence or investigation of the case.