Supreme Court of IndiaSujit Tiwari vs The State Of Gujarat on 28 January, 2020Author: Deepak GuptaBench: L. Nageswara Rao, Deepak GuptaNON­REPORTABLE\n\n\n                IN THE SUPREME COURT OF INDIA\n               CRIMINAL APPELLATE JURISDICTION\n\n\n\n\n          CRIMINAL APPEAL NO.1897 OF 2019\n(@SPECIAL LEAVE PETITION (CRIMINAL) NO. 3478 OF 2019)\n\n\n\n\nSUJIT TIWARI                                    …APPELLANT(S)\n\n\n                               Versus\n\n\n\nSTATE OF GUJARAT & ANR.                        …RESPONDENT(S)\n\n\n\n                          JUDGMENTDeepak Gupta, J.1.      This bail application has been filed by one of the accused\n\nand we are giving the facts necessary only for the decision of his\n\ncase.12.   The Indian Coast Guard received some intelligence inputs\n\nwith regard to suspicious activities of a ship MV Hennry.\n\nTherefore, the Indian Coast Guard took their own ship and\n\nintercepted the vessel on 29.07.2017. The intercepted vessel MV\n\nHennry was flying a flag of Panama. The Master of the ship was\n\none Suprit Tiwari, and there were 7 other crew members, all\n\nIndian nationals. The Master and the crew members were not in\n\npossession of any licence, permit and could not even produce any\n\ndocument pertaining to departure from last port of call i.e. Abu\n\nDhabi in U.A.E. or for the next port of call, i.e., Bhavnagar in\n\nGujarat.     It is alleged that the Master Suprit Tiwari when\n\nquestioned     admitted   that   they   were   carrying   contraband\n\nsubstance in the nature of narcotics in the ship. He identified\n\nthe locations and approximately 1445 kg of narcotics substance\n\nin 1526 packets was recovered. This was hidden in two cavities\n\nmodified in the two tanks on both sides at stern of the vessel and\n\nalso in the bollards and railings on both sides of the weather\n\ndeck.      These cavities and railings had been fabricated for\n\nconcealing narcotics which were stored in water proof packets.3.   Information in this regard was given to the Narcotics\n\nControl Bureau, Ahmedabad (for short ‘NCB’). The NCB carried2out investigation and after completing some investigation, filed a\n\ncomplaint before the Special Judge, NDPS Court at Porbandar in\n\nGujarat on 22.12.2017 against the Master and the 7 crew\n\nmembers and 5 other persons including the appellant Sujit\n\nTiwari, who is the brother of the Master of the ship Suprit Tiwari.\n\nIn the complaint it is mentioned that after the Indian Coast\n\nGuard informed the NCB, a team of NCB went to Porbandar and\n\nonce the ship MV Hennry came to the jetty on 31.07.2017, the\n\nsame was boarded by the officials of the NCB, including the\n\nIntelligence Officer. Information was collected by the officials of\n\nthe Indian Coast Guard and the Intelligence Officer opened one of\n\nthe packets and found that it contained a substance which was a\n\nlight brownish powder which on testing gave positive result for\n\nheroin. Thereafter, all the 8 persons i.e., Master and crew of the\n\nship were detained and the contraband substance was off­loaded\n\nfrom the vessel and taken to the premises of the police\n\nauthorities.   Thereafter, the narcotic substance was weighed,\n\nsamples were taken and further investigation was done.4.   According to Suprit Tiwari he was working for an Iranian\n\nNational Sayed Ali Moniri (Seyed Mahmoud) and it was Sayed Ali\n\nMoniri who purchased the heroin and got the cavities made in3the ship.   He offered huge amounts to the Master and crew\n\nmembers to illegally transport the heroin.        Two crew members\n\nwho did not accept the offer left the ship.5.   According to Suprit Tiwari, 4 Iranians namely Ebrahim,\n\nMustafa, Mohammad and Rasool accompanied them on the ship\n\nand they started for Sharjah and reached Dubai the next day.\n\nAbout 1500 kg of heroin was loaded on the ship in Gwadar Port,\n\nPakistan and 1 Pakistani National named Khalid Mohammad also\n\njoined the accused here.      However, instead of going towards\n\nEgypt, as directed by their boss, Suprit Tiwari and crew members\n\ndecided to bring the ship to India and changed the name of their\n\nvessel from Prince­II to MV Hennry.           Suprit Tiwari and crew\n\nmembers after landing in India decided to sell all the drugs and\n\nget the ship dismantled as soon as the drugs got delivered to\n\nVishal Kumar Yadav and Irfan Sheikh who assured them to buy\n\nthe entire consignment. According to Suprit Tiwari, all the non­\n\nIndian crew members, i.e. four Iranians and one Pakistani\n\nnational deboarded the ship after concealment of drugs.6.   The Master and crew members destroyed the Automatic\n\nIdentification System (AIS) of the ship so that it could not be\n\ntraced by the owner or any other person.            In his voluntary4statement, Suprit Tiwari revealed that he had informed his\n\nbrother Sujit Tiwari about some illegal activity in which he was to\n\nmake a huge amount of money and he also told Sujit that he\n\nwould get Rs. 50 crores through hawala.          The appellant Sujit\n\nTiwari was arrested on 04.08.2017.         The allegation against the\n\nappellant is that he was part of the conspiracy to smuggle the\n\nhuge quantity of contraband into India and therefore he should\n\nnot be granted bail.7.   Mr.     Siddharth   Dave,   learned    senior   counsel   for   the\n\nappellant urges that there is no material to connect the appellant\n\nwith the crime. He has also argued that the appellant is entitled\n\nto a default bail since the investigation has not been completed\n\nwithin the period prescribed underSection 167of the Code of\n\nCriminal Procedure, 1973 (for short ‘CrPC’) read withSection 36Aof the Narcotic Drugs andPsychotropic Substances Act, 1985 (for\n\nshort ‘NDPS Act’).8.   On the other hand, Mr. K.M. Natraj, learned ASG appearing\n\nfor the respondents submits that keeping in view the bar ofSection 37of the NDPS Act, no bail can be granted to the\n\nappellant.    As far as default bail is concerned he submits that5since the complaint was filed within time, the appellant cannot\n\nget benefit ofSection 167CrPC read withSection 36Aof the\n\nNDPS Act even if investigation has not been completed. While\n\ndeciding this bail application we are conscious of the provisions\n\nofSection 37of the NDPS Act which lays down two limitations;\n\none, that the court is prima facie of the view that the appellant is\n\nnot guilty of the offence and secondly, that he is not likely to\n\ncommit any offence while on bail.9.    We have gone through the statement made by the appellant\n\nunderSection 67of the NDPS Act.         Without going into the\n\nquestion whether the statement is admissible or not, as this\n\nmatter has been referred to a larger bench, we are, for the\n\npurpose of this case, taking the statement into consideration\n\neven though the appellant has resiled from the same.10.   The prosecution story is that the appellant was aware of\n\nwhat his brother was doing and was actively helping his brother.\n\nAt this stage we would not like to comment on the merits of the\n\nallegations levelled against the present appellant. But other than\n\nthe few WhatsApp messages and his own statement which he has\n\nresiled from, there is very little other evidence. At this stage it\n\nappears that the appellant may not have even been aware of the6entire conspiracy because even the prosecution story is that the\n\nbrother himself did not know what was loaded on the ship till he\n\nwas informed by the owner of the vessel. Even when the heroin\n\nwas loaded in the ship it was supposed to go towards Egypt and\n\nthat would not have been a crime under theNDPS Act. It seems\n\nthat Suprit Tiwari and other 7 crew members then decided to\n\nmake much more money by bringing the ship to India with the\n\nintention of disposing of the drugs in India. During this period\n\nthe Master Suprit Tiwari took the help of Vishal Kumar Yadav\n\nand Irfan Sheikh who had to deliver the consignment to Suleman\n\nwho had to arrange the money after delivery. The main allegation\n\nmade against the appellant is that he sent the list of the crew\n\nmembers after deleting the names of 4 Iranians and Esthekhar\n\nAlam to Vishal Kumar Yadav and Irfan Sheikh through\n\nWhatsApp with a view to make their disembarkation process\n\neasier. Even if we take the prosecution case at the highest, the\n\nappellant was aware that his brother was indulging in some\n\nillegal activity because obviously such huge amount of money\n\ncould not be made otherwise. However, at this stage it cannot be\n\nsaid with certainty whether he was aware that drugs were being\n\nsmuggled on the ship or not, though the allegation is that he7made such a statement to the NCB underSection 67of the NDPS\n\nAct.11.    At this stage, without going into the merits, we feel that the\n\ncase of the appellant herein is totally different from the other\n\naccused.      Reasonable possibility is there that he may be\n\nacquitted.     He has been behind bars since his arrest on\n\n04.08.2017 i.e. for more than 2 years and he is a young man\n\naged about 25 years. He is a B.Tech Graduate. Therefore, under\n\nfacts and circumstances of this case we feel that this is a fit case\n\nwhere the appellant is entitled to bail because there is a\n\npossibility that he was unaware of the illegal activities of his\n\nbrother and the other crew members. The case of the appellant\n\nis different from that of all the other accused, whether it be the\n\nMaster of the ship, the crew members or the persons who\n\nintroduced the Master to the prospective buyers and the\n\nprospective buyers.12.    We, however, feel that some stringent conditions will have to\n\nbe imposed upon the appellant.13.    We direct that the appellant Sujit Tiwari be released on bail\n\nupon furnishing a bail bond in the sum of Rs.10,00,000/­ (Ten\n\nLakhs only), with two sureties of the like amount to the8satisfaction of the Special Judge, NDPS Court at Porbandar on\n\nthe following conditions:­(a)    The appellant shall deposit his passport, if any\n      with the Court.(b)    The appellant shall either stay in Porbandar or\n      Kolkata. He shall not go to any other place.(c)    The appellant shall give his cell­phone number to\n      the police authorities and shall not change his cell­phone\n      number without permission of the trial court.(d)    Whether the appellant remains in Porbandar or\n      Kolkata, in Kolkata he shall report to the Entally police\n      station daily at 09:00 A.M. , and in Porbandar he shall\n      report to the Investigating Officer of the NCB at 09:00\n      A.M. everyday.(e)    The appellant shall join the investigation as and\n      when called upon to do so before the authorities of the\n      NCB.(f)    The appellant shall not in any manner hamper or\n      try to interfere in the investigation.(g)    Once the trial begins, the appellant shall not in\n      any manner try to delay the trial.14.    If the appellant violates any of these terms, the NCB shall be\n\nentitled     to   straightaway   apply   to    the   Special   Judge   for\n\ncancellation of his bail.915.   The appeal is disposed of on the aforesaid terms. Pending\n\napplication(s), if any, stand(s) disposed of.……………………………….J.(L. Nageswara Rao)\n\n\n\n\n                                        ………………………………..J.(Deepak Gupta)\n\nNew Delhi\nJanuary 28, 202010