Mumbai: Observing that due to uncertainty in the seizure of the contraband from an alleged drug peddler which prima facie may lead to his acquittal, the Bombay High Court has granted bail to Abdul Kadar Shaik, an accused in the Cordelia Cruise drug bust case in which actor Shah Rukh Khan’s son Aryan Khan was arrested. Aryan Khan was later discharged from the case by the NCB.
“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,” Justice NJ Jamadar said on Tuesday while granting him bail on furnishing a personal bond of Rs one lakh. Shaikh approached the HC after his bail plea was rejected by the special Narcotic Drugs and Psychotropic Substances (NDPS) in November 2023.
Shaikh, 30, who worked as a senior executive with a logistics firm, was arrested at a bus stop opposite a mall in Juhu on October 3, 2021, a day after the raid on the cruise. He was arrested for possession of 2.5 grams Ecstasy pills and 54.3 grams Mephedrone (MD). He was arrested based on the statement of Mohak Jaswal, who was arrested along with Aryan Khan, his friend Arbaaz Merchant and others.
His advocates, Kushal Mor and Apoorv Srivastava, submitted that Shaikh had been falsely implicated in the case. Also, the panch witnesses [a person who is present at the time when the police is registering an offence and arresting an accused] at the time of his arrest had acted as panch in as many as 17 cases registered by the NCB in one year period.
Although, the HC said that the trial court would decide on the “weight to be attached” to the panch witnesses’ testimony, it added that the fact cannot be brushed aside that the same person had acted as a panch witness for the premier agency.
“Nonetheless, the Court can not simply brush aside the fact that (witness) 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,” Justice Jamadar underlined. The court also questioned the delay in sending the seized contraband for examination by the forensics laboratory.
The seizure was effected on October 3, 2021. The investigating officer made an application before the jurisdictional Magistrate on November 18, 2021 and the proceedings were conducted on December 4, 2021. “There is an element of delay on the part of the investigating officer, in seeking the certification of the inventory of the contraband and drawing of samples thereof,” the court added.
The court also noted the discrepancy in the colour of the contraband allegedly seized from Shaikh. As per the NCB report, it allegedly recovered a white colour powder substance. However, the report submitted by the Central Forensics Science Laboratory on February 21, 2022, mentioned “a transparent zip lock bag containing brown colour powder, stated to be 5 gm MD received for analysis”.
“The aspect of delay in conducting the inventory of the seized substance and drawing of samples before the Magistrate and the analysis of the sample by the CFSL assumes critical salience,” the judge opined.
The court also took into account that Shaikh has been in custody since October 4, 2021 and it is extremely unlikely that the trial can be concluded within a reasonable period. Shaikh has no antecedents and hence it can be inferred that Shaikh “may not indulge in identical activities if enlarged on bail”, the court noted while granting him bail.
The prosecution has alleged that Shaikh was involved in the illicit trafficking of Psychotropic Substances and purchased MDMA (Pills) from Chinedu Igwe and supplied MDMA (Ecstasy) pills to Mohak Jaswal who further supplied it to Nupur Satija and Gomit Chopra. Further, the prosecution claimed that he was a part of a nexus involved in the illicit trafficking of drugs. The Forensic extraction report of Shaikh's device revealed that the phone number of Mohak Jaswal was found in his contact list.
