Thread by @barandbench

#BombayHighCourt will hear today the bail applications moved by Rhea Chakraborty and her brother, Showik Chakraborty in the NDPS case lodged against them by the Narcotics Control Bureau on allegations of illegal trafficking and financing of drugs.

@Tweet2Rhea

#RheaChakraborty

In the last hearing, Advocate Satish Maneshinde argued for the bail applicants that the NCB has no jurisdiction to handle the case after the Supreme Court tasked the CBI to probe cases concerning the death of #SushantSinghRajput case.

In its reply, the NCB has asserted that the SC has only directed the transfer of any probe concerning the death of #SushantSinghRajput to the CBI.

The NCB has jurisdiction in the present NDPS case, it has been submitted.

Read more:

barandbench.com/news/litigatio…

The bail applications will be heard today by Justice SV Kotwal.

@Tweet2Rhea

#RheaChakraborty
#BombayHighCourt
#NCB

The hearing has started.

Advocate Tareq Sayed has made submissions for co-accused Abdel Basit Parihar.

Advocate Maneshinde to shortly start making submissions for Rhea and Showik Chakraborty.

@Tweet2Rhea

#RheaChakraborty
#BombayHighCourt
#NCB

Adv Maneshinde refers to a 1989 amendment to NDPS Act was pursuant to a UN Convention (Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances) of 1988, of which India was a primary...

By this amendment, Section 27 was introduced (to NDPS Act), he adds.

Maneshinde reads from UN Convention: The organisation, management or financing - financing is what we have been accused..

HC: We are at the stage of whether offence is bailable/non-bailable. That financing aspect, we will go into later. You concentrate on is offence is bailable

Maneshinde reads out a case ruling that says that bail cannot be granted if the drugs seized is of a "commercial quantity."

But if it the contraband is of small quantity, the same would not come in the folds of Section 37, NDPS Act, the case says

#RheaChakraborty

Court: Read slowly, it says that Sec 37 will not apply, it does not make it bailable. Embargo (on grant of bail) will not apply, that will not make it bailable

#RheaChakraborty
#BombayHighCourt

Maneshinde: No milord, it says S 37 will not apply..

Court asks if that would make the offence bailable

Court: Read it again and again, they have not said. Rigours (u/Sec 37, NDPS Act) will not apply, to that extent I agree with you. Not beyond that

#RheaChakraborty

Maheshinde argues that intent of a 2001 amendment to the NDPS Act was to bring a drastic change to liberalise bail provisions in respect to certain provisions

The drastic change was with respect to seizure or involvement of small quantities of drugs, he adds

#RheaChakraborty

Maheshinde: the amended provisions were to rationalise the punishment.. as well as the restricted application of strict bail provisions...

#RheaChakraborty
#BombayHighCourt

Maheshinde: Looking into statement and objects, in cases of quantity which are not commercial quantities - particularly small quantities - these are bailable offences depending on the punishment

Court: They only say rigour will not apply, it does not make the offence bailable

Adv Subodh Desai for Samuel Miranda: Non-obstante clause of Sec 37, NDPS Act is in the nature of saving applicability of CrPC to offences other than those with respect to four offences u/Sec 19, 24, 27A and offences re commercial quantity

Section 436, CrPC (Bail) will apply for offences with punishment less than 1 year, Adv Desai submits.

Court now asks ASG Anil Singh to make submissions on bailability of offences.

#BombayHighCourt
#NCB
#RheaChakroborty

All offences are non-bailable, says ASG Anil Singh for the #NCB. ASG Singh says that the stance taken by the bail applicants is not correct.

ASG Singh: CrPC will not apply as far as the NDPS Act is concerned.

#BombayHighCourt
#NCB
#RheaChakroborty

ASG Singh: The provisions of bail for NDPS Act has been made more stringent considering the kind of offences which is destroying the structure of the society.

#BombayHighCourt
#NCB
#RheaChakroborty

ASG Singh: The Court will have to keep in mind the backdrop under which the Act is made, the social condition, what is the legislative intent.

#BombayHighCourt
#NCB
#RheaChakroborty

ASG Singh: This is a sort of crime, as interpreted by the Supreme Court, which worse than murder or culpable homicide. Murder affects one person or one family. But this (drug cases) affects the entire society.

#BombayHighCourt
#NCB
#RheaChakroborty

ASG Singh: We are seeing the trend going on in the country.. the college youngsters...

This a crime, where it should be made non-bailable. Therefore the legislature has said that the offence will be cognisable. They have not said it is bailable.

ASG Singh: Crime should be made non-bailable and hence the NDPS Act came in, including Section 37.

The legislature is clear that CrPC will not apply. If CrPC will not apply, the question of bailability or non-bailability of CrPC need not be considered, he adds.

ASG Singh: The offence under the NDPS Act is non-bailable.

#NCB
#RheaChakraborty
#BombayHighCourt

Justice Bhatia's judgment does not refer to non-obstante clause, it is submitted.

Court: It does, it has been reproduced.

ASG: Yes, but it is not interpreted.

#NCB
#RheaChakraborty
#BombayHighCourt

Judgment referred to is Stefan Mueller vs. State of Maharashtra, rendered by Justice JH Bhatia.

Full Judgment can be read here:

indiankanoon.org/doc/1707592/

Court: If the offence is non-bailable, doesn't mean he has to be arrested. (while referring to Section 41)

Court (to Adv. Taraq Sayed): Go to Section 43B, they speak about arrest.

Court: If there is inconsistency, then NDPS will prevail. I was trying to tell this to Mr. Desai.

#BombayHighCourt
#RheaChakraborty

Court: I am giving you all food for thought - you must have cited this judgment 100s of times. I am asking you to read Baldev Singh 1999. Constitution Bench judgment.

In para 4 they have said in clear terms, categorically that all offences under NDPS act are non-bailable.

Court: Go through that judgment all of you, come back after recess, that judgment is very relevant, I am telling you.

It has been in the field in 1999, and still, we are debating on bailable or non-bailable.

Court: You can still argue all other points. This was important, that's why we discussed. I am open to all other points. Please don't assume all other points go. But I will consider all points

Now the court begins hearing the individual bail applications.

Advocate Sayed for Samuel Miranda starts submissions first. Sayyed begins with the facts of his case.

#BombayHighCourt
#NCB

On one Karan Arora and another person with him were produced before the Sessions Court and they were granted bail, Court asks: Because it was bailable?

Sayyed: Yes

#BombayHighCourt
#NCB

CORRECTION: Adv Sayad is making submissions for Abdul Basit Parihar

Sayed narrates: On 3rd September Parihar, the present Applicant is arrested. Parihar mentioned Kaizan Ibrahim's name and he was arrested.

Sayed: ... Anuj Keswani was involved in the matter and the role of the Applicant became clearer.

Court: Aren't these details mentioned in the Affidavit in reply?

Sayyed starts pointing out facts from the Affidavit

Sayyed: Let me point out the fact of the case
A vital aspect is, #SSR was the consumer in this case.
He was consuming drugs.

1 and 2
Court: don't tell me numbers, take names.

Sayyed: Karan Arora gave name of Zaid Vilatra and from there the Applicant.

Sayyed: all charges of Section 27A are there. But save and except Kaizan Ibrahim, nothign recovered from anyone else.

Sayyed: There are two conspiracies.
There are 2 set of people.
There are people directly linked in to #SSR
There are people who have been arrested from the names given by the accused, like Sayyed's client.

Sayyed: conspiracy ends the moment the act is committed.
Suppose the conspiracy ending, any act is committed by me cannot be part of 120B (IPC) .

Sayyed: ##SSR expired on 14th June.
I am not admitting that there was a conspiracy.
He expired on 14th June, and we are being charged to supply him drugs when he was alive.
Whenever the man was alive, we were supplying him drugs.

Sayyed: Now prior to 14th June, if we accept prosecution case, the allegation is we facilitated the consumption.
So accepting that theory, what can I be charged for Sir?
Consumption is Section 27.
Persons who according to them facilitated, can be charged at the most at S.29

Sayyed: can a charge of conspiracy ever be higher than the offence?
When an offence is bailable, and accused produced before Mag, we were never charged offences which are non-bailable.
Court: which is why I asked bailability?

Sayyed: Remand applications mentioned S.8(c) read with S.20(b)(ii).
No mention of quanity or commecial/non-commecial quantity.
Court: what category of (b)(ii)?
No categories of the S.20(b)(ii) mentioned.

Sayyed points out picture of what would have happened if Police was investigating.
Statement recorded under S.67 has only corroborative value.
Court: his own statement too? witness I understand.
Sayyed: corroborative for seizer sir.

Sayyed: In a given case, if there is no recovery, and in my statement I admit involvement cumulatively they do not amount to a lot, and to whom I have given, they have given, how can that be used?

Sayyed: more people in our country die of gutka and smoking.
So we should leave the morality argument aside.

Sayyed: unrebutted, a free will attempt has been made to show that from Anuj Keswani there is recovery of contraband.
Court: Please read para 10 of the reply
Sayyed: *reading*

Sayyed after reading
Just because you arrest 16 people does not mean there is conspiracy.
What has been recovered from accused are small quantities.
My client is an architecture student who lost a year.

Sayyed: what is the material to show that I delivered a contraband to some person who took it further?
In none of the statements have they shown the quantity to be more than a small quantity.

Sayyed: NCB does not prove what more evidence do they want. They just want to show that they have busted on a drug cartel by arresting 19 college students.

*correction* it is a feeble attempt.

Sayyed: NCB could not fathom my role
Hence they played with Sections.

Sayyed argues that the Affidavit of NCB is very vague.

Sayyed says that he can candidly agrees his applicant may have consumed at some time.

But NCB has not been able to show how is this a cartel?

Sayeed: These are young, budding people.

Sayyed: They started off on the premise that we want to unearth the murder of #SSR

Sayyed states that NCB is not sure how to go about investigating and that it is maligning the dead.

Sayyed: They have not recovered any substances, so they charge me with things I have done in the past.
There is no corroborative evidence.

Sayyed submits that during remand if the only allegation is of bailable offence, then you inform the court the nature of the offence, and submit that the Court can either reject or accept bail.

Sayyed: When my client was apprehended, I moved the matter before the Ld. Judge (CMM)
When you adjourn the matter, then the Dept gets time to make changes in the case.
Post me being remanded to custody, they have brought in a new person.

Sayyed: as far as present applicant is concerned, save and except allegation from buying from Kaiz or Zaid and giving to Showik, there is absolutely no allegation
How can that offence be proved when the Man (#SSR) is no more.

Sayyed: Co-accused have been charged with 27A, hence I am also charged.

Sayyed: Financer is not privy or party to the actual sale or purchase.

Sayyed: Ingredients have to be made out for the financial transactions. The sale and purchase have to be shown.

Refers to Kerala HC judgment.

Court: there is no other judgment in this.

Sayyed: There are other matters, but not to the T.

Judgment is KK Ashraf. State of Kerala of the Kerala HC being referred.

Read the judgment here:
indiankanoon.org/doc/863660/

Court enquired about Section 8A and 8B.

Continues with hearing.

Sayyed: For my applicant, there is no charge made out for S.27A except for vagu averment in the affidavit.

Sayyed: I seek indulgance of Maneshinde to address on this.

Sayyed: I do not have any documents other than the remand application.
I believe they are relying on certain chats.
For any act, omission or commission, there has to be an act.
I send a message to some dealer, only on that basis, can an offence be proved?

Sayyed: unless and until prosecution can prove that the contraband was delivered to me they have no proof.
The delivery could have stolen it, sold it elsewhere, taken amd absconded.
What is the proof?

Sayyed: There are no drugs before teh Court. We are talking of actions taken place in March before 14 June.

Sayyed: the fact that there are drugs not proved, delivery not proved, #SSR consuming not proved.

Sayyed: this is stage of bail. I cannot go into the truthfulness.
Their pivot is absent, the man is gone.

How do you corroborate the evidence?
A statement does not mean the gospel truth.

Sayyed: As far as present applicant, even in Affidavit there is no charge of S.27A.
Affidavit is vague.

Sayyed points out a judgment from the compilation.

Sayyed from the judgment referred points out the Courts observation
Sayyed: even today we are not charged for 27A or 20(b)(ii) which are non-bailable offence

Court: you are again going to the bailable aspect

Sayyed: I will address you in the afternoon.

Court: you do not want to address on S.37

Sayyed: I thought I would address in the afternoon after reading Baldev Singh

Court: No but Section 37 and bailability are different aspects.

Sayyed (refers to 37)

Sayyed: In 1989, there are no small, intermediate and commercial quantities. the sentencing structure was uniform.

Court: you are forgetting 27A

Sayyed: I was referring to consumption

Court: go by the sentencing not the offence

Sayyed reads out S.27A and tries to analyse for the court what financing means

Sayyed: illicit trafficking is clandestine act, stressing on clandestine.

Court: where do you get this clandestine?
use the Act definitions.

Sayyed: Section 19, 24, and 27 remain unamended.

He points out that S.30 (from the old Act) and Section 31A.

Section 19, 24, and 27 remain on a separate pedestal he says. Each of these offences attract a minimum of 10 yrs and max 20 yrs he adds,

Sayyed: In a given case, as in the present case, if the contravand is small quantity will section 19, 24, 27 and 27A attract? It is in these 4 sections,

Court: 37 also mentions

Sayyed: Kindly see amendment of 2001

Sayyed: The word to press upon is "significant" quantities. importnt for interpretation of the Section

Court: section does not say so

Sayyed: Amendment of 2001 is the quantities. is 5 gm small trafficking. Is it trafficking when a person is found with 5 gms?

Court: in that case, very easy to say commercial quantity, why did they specify 19, 24 27A special categories?

Sayyed: because they did not connect the Section 19, 24 and 27A for different sentencing.

Court argued that there was a reason that the rigours of the Act will apply because the Sections are specifically separated.

Sayyed reads another judgement from the compilation.
Stresses on the phrase of "Quantum of sentence".

Court: This goes against your case

Sayyed: sentencing in all offence is 10-20

Court: yes but this is consistent

Sayyed: Let us see 27A

Corut: 27A does not mention quantity

Sayyed: Section 27A is not harmonious if 8(a) and illicit financing not read properly.

Court: What is harbouring you will find in certain judgments and some other statutes.
TADA, Kartar singh mentions.
Harbouring need to be looked into.
Quantity needs to be looked into.

Sayyed: That is exactly my point sir.
Quantitty cannot be overlooked.

Court: Harbouring and financing have to be connected. cannot be separately read.

Court: harbouring is not as simple as you point out

Sayyed: reads the section

Court: Read 2(8)(a) relating to illicit traffick.

Sayyed reads

Sayyed reads the section defining illicit trafficking.

sums up, that 2(8)(a) includes harbouring and financing

Court: but in 27A only 5 points mentioned. rest all is separated.

Court: Read 8(c)

Sayyed reads and says that the section is exhaustive and inclusive

Court: they were conscious that S.8 was there and S.27A was not amended. consciously. That should be looked into.

Court: If they wanted to change sentencing structure, then they would have, but they have left it untouched, so there must be some reason.
Section 27A and 37 both. there is deliberate.

Court: only satisfy me why they did not interfere with Section 27A in 2001?

Sayyed: I give him 10000 and ask him to buy drugs
He uses 1000 to buy and blow away 9000
How do you quantify finance as an offence?
There are different prices in different places.

Sayyed: Prices on drugs are never fixed. So finance with qunatity are difficult to connect.

Court: are you saying that financing should include profit?

Sayyed: If I am financing I would want profit

Court: When financing and harbouring mentioned in Section 27A, it has reason.

Sayyed: Financers do not want to be the face
It is different from sale purchase and includes bulk.

Court: harbours includes indulges in activity and engages in activity. Hence there is continuity in the activity. Section 27A have to be looked into properly.

Court: Indulging in financing might be a one time thing.
Engaging in the financing gives it an illicit angle.

Harbouring needs to be read in this aspect.

Court: Harbouring would have to look into the act. The thread of the actions will have to be looked into.
The consumer's addiction has to be looked into.
The act is not just stringent but benevolent too.
Court clairfies that these are comments on the law prima facie not the case

Court: Prosecution will have to show something more to prove their case.

Sayyed tries to show that the quantity is of some relevance.

Court says the same is noted.

Court: who is assisting you Mr. Sayyed?

Sayyed: My Junior Mr. Tamankar. To be honest, the written submissions are his handiwork.

Court: Good.

Sayyed: refers to a judgment from the Court of Canada.

He sums up that the moment illicit trafficking is brought in then the quantity has to be included.

Sayyed asks if he can assist the Court in more issues.

Court: How much more will you address? You have researched so much.

Maneshinde begins with his argument with the leave of the Court.

Court jovially asks Maneshinde to begin before Sayyed addresses with something else.

Maneshinde begins with the facts of the case. Refers to his list of dates.

Maneshinde asks the Court to note the dates because they are important in his case.

Maneshinde begins giving a brief history of how @Tweet2Rhea and #SSR met.

He adds how #SSR was consulting some doctors for his mental issues.

Maneshinde further submits that #SSR informed the doctors about his drugs habit.

Maneshinde submits that there was some argument between @Tweet2Rhea and #SSR on prescription medicines from his sister.

#SSR asked her to leave on 8th with bags.

14th June he was found dead.

Maneshinde submits that #SSR's family filed an FIR before Patna police. That went before Supreme Court. The ED got into investigations. The case was transferred to CBI.

Rhea was taken in custody by the ED says Maneshinde.

Maneshinde says when SC case was pending, @dir_ed submitted some data to @narcoticsbureau

SC held that all cases of #SSR all cases to be investigated by @cbic_india

As of today @narcoticsbureau has arrested 20 people in this matter for investigation. 5 have bail.

Since it is 2 pm, the Court asks Maneshinde to continue at 3 pm.

The matter will be taken up at 3 pm.

Hearing resumes.

Maneshinde resumes arguments on behalf of @Tweet2Rhea and her brother Showik Chakraborty.

Maneshinde resumes arguments from Baldev Singh judgment.

Maneshinde begins reading from the judgment.

Court: I have read it what are your submissions?

Maneshinde: I submit that the judgment was prior to amendment.

Court: What affect does that have? The structure of the Act is the same.

Manehinde refers to a judgment of Del HC after the 2001 amendment which talks of change in the parliamentary regime leading to change in the category norms and offences.

Maneshinde continues reading.

Court asks him to read a later paragraph which is more relevant.

Court points out that the reasoning given in the Delhi HC is the same as the Stefen Muler case.

correction *reasoning given by Delhi HC judgment* is the same as the Stefen Muler case.

Maneshinde referring to the Baldev Singh judgment says that this judgment may be of SC but this Court can take the present facts into consideration to decide.

Court asks if anyone wants to add something to the Baldev singh case.

Advocate Subodh Desai intervenes that he has some submissions.

Desai says that there is fleeting reference of Section 37 reasoning in Baldev Singh judgment, but the Court corrects him that it is in detail.

Desai argues that since the matter is about Section 50, the Supreme Court could have included Section 37 in its jugdment. But SC did not consider.

Court: are you saying it is obiter or not?

Desai: I am only saying that there is fleeting reference of Section 37.

Desai referred to the two provisions Section 37 and 51 of the NDPS Act.

He submitted for S.51 that when there is some gap in the section then CrPC will come in.

Desai argues for the Section 37 and he points out that when S.19, 20, 24, and 27A and commercial quantity is considered.

He refers to the Delhi HC judgment.

Court points out again that this judgment in similar to Stefen Muler case

Court: I only want to know if Baldev is binding or not? Just submit your arguments on that.

Desai argues that the embargo of bail is only for S. 19, 20, 24, 27 and for other cases it is bailable.

court: If you want to tell me why I should not follow Baldev Singh, mention that, I want to know that. I know these other HC judgments. Show me why I am not bound by SC case.

Court asks Sayyed to proceed.

Sayyed submits the Section 36C of the NDPS Act and judgment of Basheer.

Court asks ASG to reply on this issue.

ASG: apart from the plain reading of the Section, and the SC judgment,-

Court intervenes: the SC judgment is there and also the 2002 judgment of Abdul Rahim.

Maneshinde: Apart from the SC judgment, the other high courts have been granting bail.

Court: If the constitution bench says something whom should I follow? Is it not the law?

Maneshinde begins arguments on his applications.

He points out how the 5 other co-accused charged with same offences have been granted bail.

Maneshinde begins arguments on the Section 27A.

He refers to the UN Convention, Article 3.

He points out an article in the Convention that is missing in NDPS Act.

Maneshinde: India having assent to this convention, amended the NDPS Act in 2001.

Refers to the Statements and Objectives of the amendment.

Maneshinde: Section 27A was brought in 2001

court: no 27A came in 1989.

Maneshinde, yes I stand corrected.

Court: what does 1989 statement and object read?

Maneshinde reads out the statement and object of the 1989 amendment.

Maneshinde: This amendment added Section 27A. Refers to illicit traffic. So therefore let us go to Section 2.

Reads section 2 definition of illicit trafficking

Maneshinde: What is missing regarding direct or indirect financing is what is there in the UN convention. What is missing is financing any of the offences?

Court: financing is mentioned in the Section 8(a). It is mentioned in our Act.

Maneshinde: Unfortunately it was only for those listed acts. As far as our Act is concerned for illicit trafficking, it includes transportation, sale, etc.

Maneshinde: but in the UN convention, it includes any activities of possession and sale had to be in relation to profuction and manufacture of the substance.

Court: No our Act contains everythign as well.

Maneshinde: all that is mentioned in Section 8 is under Section 20.

Court: illicit traffic definition was brought after UN Convention, along with S.27A

Maneshinde: It was brought for international transaction only.

Court: I do not accept this. This is broad submission.

Maneshinde comes back to the facts of his cases after Court asks him to stick his arguments.

Maneshinde says Sayyed has already pointed out the factual chronology and the quantities. So he is not repeating.

Maneshinde submits the facts while pointing out how Rhea knew these accused.

He clarified that Rhea was never in direct contact with Anuj Keswani and neither was Showik.

Maneshinde points out that it was alleged that Showik was involved in the delivery of the drugs with the other accused which was consumed by #SSR .

Maneshinde submits that there is no proof of applicants' involvment in this delivery.

Maneshinde: The entire case of prosecution is that the only person consuming drugs is #SSR, no one else.

Maneshinde: there is nothing to show that @Tweet2Rhea had purchased or sold drugs. There was nothing to show that she was an active member. There is no evidence.

Maneshinde: All these allegations are between March and June in the pandemic. #SSR was in his house. There was no scope for anyone to leave the house. There were four more people in the house apart from Applicant.

Maneshinde: during the entire NCB trial, there was nothing on record to show that they were collecting material from #SSR's phone or his transactions.

Maneshinde: Investigation being carried out on accused who are not consumers.

Maneshinde: Nothing on record to show #SSR's consumption before meeting Rhea.

Maneshinde: there is no direct payment from applicant's debit card to anybody.

Maneshinde reads out facts as mentioned in the NCB's affidavit.

Court: As per their allegations you have spent Rs. 17000/-?

Maneshinde: And then there is transaction by #SSR but NCB says it is applicant along with #SSR.

Maneshinde: NCB has no evidence to show that the small quantity which was brought in by the Applicants was further sold for profit. It was for #SSR's consumption. There is no evidence that the applicants consumed the drugs.

Maneshinde: Also, how do harbour him in his own house?

Maneshinde reads the definition of harbour from Section 212 of the IPC.

Maneshinde: at no point was #SSR under any apprehension.

Court: You say harbouring has been taken from IPC? Where is it under NDPS?

Maneshinde: it is not defined.

Court: Where does it say you can refer to IPC?

Maneshinde: This is the only section I can find of harbouring and I do not want to go to any dictionary.

Court: They are conscious of the IPC. Legislature was conscious that if NDPS falls short then one can fall back on IPC.

Maneshinde: The point with respect to harbouring him the Prosecution says, that #SSR sent a courier from his house to my house for the drugs and stored in @Tweet2Rhea's house. but he never lived at @Tweet2Rhea 's house in that period.

Maneshinde: If at all he is being charged, if the main beneficiary is entitled to a punishment of 6 mths to 1 yr, then would somebody who is alleged to have financed a purchase, be accused under S.27A?

Maneshinde: my submission is S.27A is not applicable.

Court: even if assuming it is attrcated, then make your next submission. I am not stopping you. (regarding Maneshinde's submission pertaining to Section 31A)

Maneshinde refers to a Division Bench judgement.

Court: You read, if I find relevant I will read it. I do not see the relevance though.

Maneshinde reads out the judgment.

Court: Section 31A interpretation is different from the commercial quantity argument you are raising.

Maneshinde: Let me finish reading Milord, it will make sense.

Maneshinde says that Section 27A being clubbed with 19, 24, and commercial quantity would also mean that it would only mean for commercial quantity and not for small quantity.

The court disagrees stating that the legislature could have done it for 37. But it is only for 31A.

Maneshinde submits final argument that NCB in this matter has no jurisdiction.

He submits that as per the SC order, any case pertaining to murder of #SSR and "Surrounding circumstances" will be investigated by the CBI only.

He adds this case is related to the #SSRDeathCase.

Court asks Adv. Subodh Desai arguing for Samuel Miranda.

Desai points out the sections charged against the application.

Desai points out the facts chronologically.

Desai: From the entire allegation, there is position taken by prosecution, I am the househelp. I used to procure the contraband for #SSR or through his friends. There is no case that I would purchase. The role was master and servant and nothing more than that.

Desai refers to SC judgment of Ram Singh vs Central Bureau Of Narcotics.

Read the judgment here:
indiankanoon.org/doc/166707333/

Desai: Judgment where servant was convicted under NDPS.
There was no possession or recovery just like my applicant.

Desai: Absurd argument to conspire for an offence under offence under 27A. Especially for the allegations made against me.

Desai: My case is my continued custody is not warranted.

Desai finished his arguments.

Advocate Rajendra Rathod begins his arguments for Dipesh Sawant.

He claims that Sawant was a house manager to #SSR

Sawant: Role assigned to me was similar to Desai's applicant. I only used to get packets for #SSR.

Sawant: Sawant is not a consumer, not a supplier, nor purcahser. He is taking packages for his master.

Sawant: NCB has not charged 27A upon me.

Sawant: Co-accused a supplier, has been granted but a servant who was nothing has not been granted bail.

Sawant: At the most the role attributed to me is the house manager. Hence I should be granted bail. My role is much lesser than the supplier in the case.

Sawant: I was produced after 36 hours.

Court: All parties kindly submit the date of recording and retraction of statement under 67.

Sayyed: Recorded 02-09 Retracted 03-09

Maneshinde: Showik Recorded 04-09 Retracted 05-09, Rhea: 06-09, 07-09, 08-09 Retracted 08-09.

Desai: Recorded 04-09 retracted 05-09
Second statement Retracted 09-09

Rathod: Recorded 04-09 Retracted on 05-09.
Second statement Retracted 09-09.

ASG begins his arguments.

Points out that drug abuse is rampant in the Society especially amongst youngsters.

Court: If you want to deter, do you have to arrest?

Court: one of the provision says that he may arrest if necessary. Discretion to be exercised in a manner not cause irreparable harm.

Court: Sec 41 of CrPC. When you arrest, you have to be sure as to not leave a mark.

ASG: The Act is protecting the larger ramifications of the drug abuse.

Court: If a father procures drug for his drug addict son out of desperation, would you throw him in jail for 10 yrs.

ASG: IF somebody is responsible for spoiling life for youngesters they have to be punished

Court: Exactly why I am saying profit must be taken into account. Act can't apply uniformly

ASG: There can be various reasons, but the Act has become more stringent with time. The deterrent punishment is kept for that. to discourage.

ASG: Harbouring and financing is to know that you are encouraging. That should be deterred.

Court: Act is absolutely necessary, no doubt.

ASG: Act has high penalty, death penalty is for repeated offender. This is because drug abuse is a serious offence

ASG refers to object of the Act of 1985.

ASG reads statement and objects of the amendments made from time to time.

Court: Read the 1989 object and statements and then send me a soft copy later.

ASG: Before coming to the scheme, I would request your Lordships attention to the chart for submission on the facts of the case. All throughout the arguments, applicants state that this is connected to the #SSRDeathCase but this investigation has nothing to do with the death.

ASG refers to the chart to show the timeline of interrogations and how they were all connected.

ASG: want to point out that this a drug syndicate. That they are all interlinked.

ASG: all persons arrested till now, are connected with each other and it is a syndicate. There was regular link and purchasing. Therefore, Lordship will have to consider the case as a whole. Not one accused from another.

Court: Sayyed argued that #SSR is no more. Then S.67 is a corroborative evidence.

ASG: recovery is not necessary. I have judgement of SC and Kerala HC. In all cases of drug abuse, recovery is not necessary.

ASG: In this entire syndicate, the drug was not only being supplied to #SSR. Those connected to Rhea and Showik have told that they were in contact with every drug dealer.
The person may not be alive, but the offence does not go.

ASG: Once I show this connection, voluntary statements (which I can rely for investigation), money gone from account, but we are at the stage of bail. Condition of bail is more stringent in NDPS than in IPC.

ASG: This is not a case related to #SSR. He may have been one of the consumer. But the entire transaction and deal is not restricted to him. Now with this background, let us go to the scheme of the Act.

ASG refers to the definitions.

ASG refers to definition to addict.

ASG refers to definition of illicit traffic.

Court: this starts with engaging in manufacturing etc. and then the definition falls right into place.
illicit traffic with 27A connotes continuation.

ASG refers to Chapter IV. He submits that there are thee categories contemplated - related to quantity (15, 18, 20, 21, 22, 23), not related to quantity (16, 19, 24, 25, 25A, 26, 27A and 27B) and related to s. 28 and 29.

Court: S.30 also perhaps.

ASG: Yes.

ASG: Punishment under NDPS is not based on quantity in each and every case. This is how the Act has been framed.

ASG: Section 8(c) does not include in financing, because it is in 27A. So coming to 27A, it deals with financing directly or indirectly, illicit traffic or harbouring. Person out to be involved in either of the three.

ASG: As mentioned, quantity is not a factor.

ASG: In Rhea's matter, we have evidence about her financial transactions.

Court: So what is difference between 8(c) and 27A. There is sale and purchase in 8(c) and 27A is finances?

ASG: person who finances is a graver offender.

ASG: I may not sale or purcahse or consume. But I am financing for manufacturing, sale, purchase, everything will be graver consequences than mere purchase.

Court: But isn't purchase a self-finance?

ASG: Once someone is added in purchase, he cannot be added as financer.

Court: If someone pays more money for purchase than a financer, then the financer will be punished stringently than the purchaser?

ASG: Financing is under S.27A. It is graver. We have to follow the Act as it is.

Court: That is why object and reasons

ASG: and it shows that 27A is graver. Financing for an illegal activity is grave. Therefore we have to follow the Act as it is, with the simple wording. Even if it says indirect financing, then also you are involved under S.27A.

ASG referring to individual cases, he points out how @Tweet2Rhea was involved in financing.

He submits that this is a clear cut case of financing.

Court: What about the KK Ashraf judgment?

ASG: I will show milord how the case is infact in my favour and not in their favour

Court: Why did you not put in your compilation?

ASG: Because I read the case after they brought it.

ASG: Financing definition in the Kerala judgment will not help in these present Applications in any case because the facts are totally different.

Court: Are you harping on harbouring?

ASG: I will tell you why I have kept harbouring. It is not in the NDPS, nor in CrPC and I don't want to show your Lords the general dictionary meaning.

ASG refers to the definition in IPC.

ASG: harbouring is a very wide term in IPC. Rhea used to get drugs at her house and then given to #SSR for consumption.

ASG: Rhea knew that this is illegal activity -

Court: The important words are to avoid apprehend.

ASG: @Tweet2Rhea did not disclose due to fear of arrest. So it is harbouring. She knew it was illegal but she continued.
Giving shelter is not letting #SSR in her house, it is shelter for the purpose of protecting from arrest.

Court: you are saying non-disclosure is shelter?

ASG: yes, assisting, concealing everything is included.

ASG now reading S.37.

ASG: argument of the applicants was that for every offence there has to be commercial quantities.

Court: No I do not accept that argument. "also" in the Section 37 is clear.

ASG: then I will not read that milord.

ASG: I will read 29 because it is read with S.27A. Applicants say that 27A was not included in the remand application.

ASG: The prosecutor argued 27A in the remand application.

ASG: This is not the case which is filed individually. THis is a syndicate.

ASG: This case has to be read together. All individuals have to be read togther.

ASG: In this case, there are new arrests and interrogations.

ASG: (jovially) The court is not at the mercy of the prosecution or the defence.

Court laughs.

ASG refers to the judgment compilation he has submitted.

ASG: I will not read in detail. I know your Lordships are sitting beyond time.

ASG with respect to jurisdiction points out a SC judgment.

ASG: It is nobody's case that this case is related to #SSRDeathCase. It may be related 5-10% to #SSR because he was consuming.

ASG: Anuj Keswani is not related to #SSR in any way. How is this case related to #SSR?

ASG: All parties are interlinked.

ASG: We are a separarte agency in Narcotics. It is our speciality. We have all provisions.

ASG: When we apprehended the first person, there was no reason of #SSR.

ASG: there are judgements of SC, which says accused cannot have choice in the investigative agency carrying out the investigation.

Court: It is a settled position. No need of judgment.

ASG: CBI has not come forward saying that NCB should not investigate.

ASG: Justice Khanwilkar judgment at para -

Court: is it relevant?

ASG: One or two paras are interesting, but I leave it to your Court.

Court: No no you point out, no difficulty.

ASG points out paragraphs of some judgments from the compilation he has submitted.

ASG: I am pointing out these judgments to show the stringency of the Act.

Court: Rigours themselves apply. If they apply then bail, if not then not apply. You have to go back to Ratan Manik's case. That is more important to you. See, page 226.

ASG: I am coming to that milord.

Correction *case mentioned is Ratan Mallik.

ASG points out important paragraphs from the Ratan Mallik judgment and another judgment of Kerala HC of 2020.

Read this judgment - Union of India Vs. Rattan Mallik @ Habul here:

advocatekhoj.com/library/judgme…

ASG points out more judgments pertaining to bail.

ASG: I am sorry, I am troubling your Lordship.

Court: It is our job.

ASG proceeds to retort on the UN Convention which was relied upon by Maneshinde and Sayyed.

ASG: Apart from manufacturing, and selling, there is financing. Milords may mark the page

Court: Yes, I have marked, I read it several times today. I know 27A came because of that.

ASG: Considering the overall case and circumstances, I would submit that this drug abuse has to be controlled in the country, in all sectors (college, schools, Bollywood). Our leaders, say our country is dependent on the young generation.

ASG: We should build our unity. But young students will be consuming for 8-10 yrs. And influential people should take care not to set such examples.

ASG: Your Lordship has seen the object of the Act. We have to protect our new generation.

ASG: And with the present situation of internal and external conflict. There is pandemic. This should be a lesson for others. I agree there should be sympathy for the youth. But we not meant for this culture in our country.

ASG: IF young people go on consuming drugs then who will look after our country. This episode should serve as a lesson to all.

Court asks if anyone wants to say anything.

Sayyed points out to para 44 of the Baldev Singh judgement.

Sayyed: Courts must carefully look at the judgement overall and not pick out words.

Sayyed: All judgments ASG cited are on commercial quantity. There was no judgment on a small quantity. We are here only because it was in small quantity.

Sayyed: This investigation has widened. Save and except Anuj Keswani, they could not recover much substance.

Sayyed: So at this stage we should not be used as pawn for teaching a lesson.

Sayyed: Statement can be used for corroborating a recovery, but the recovery shows little quantity.

Sayyed: There was anyways no connection with Anuj Keswani. Their affidavit does not have a whisper.

Court asks other Respondent Advocates if they want to place anything on record.

Everyone submits that they have nothing to add.

Court: I am thankful you have all put in efforts, and researched well.

Court: This judgment has wide reach and repercussion. I will try to write separate orders in all matters, but I might end up attributing Sayyed's arguments to Maneshinde. Please excuse me for that.

Everyone thanks the Court for a patient hearing. They say it is good opportunity.

Court said due to voluminous proceeding the order may take some time.

Court closes the arguments. The matter is now reserved for order.

Rhea Chakraborty Bail Hearing before the Bombay High Court [LIVE UPDATES]

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