Ahamefula Joseph Ekeleme S/O. Josheph Ekeleme vs State Of Gujarat & Anr

Nikhil S. Kariel, J

Heard learned Advocate Mr. Sanjay Prajapati on behalf of the applicant, learned Additional Public Prosecutor Ms. Asmita Patel on behalf of respondent- State and learned Advocate Ms. Prutha Bhavsar for learned Advocate Mr. Ankit Shah on behalf of respondent no.2.

Rule. Learned APP waives service of rule on behalf of the respondent-State.

The present applicant who has been arraigned as an accused has preferred this application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 for enlarging the applicant on Regular Bail in connection with the FIR being F.No. NCB/AZU/CR-33/2024 registered with Narcotics Control Bureau, Ahmedabad Zonal Unit for the offence punishable under Sections 8(C), 22 (C), 23(C) and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 ( hereinafter referred to as “the NDPS Act”) after filing of the charge-sheet more particularly the application preferred by the applicant having been rejected by the learned Trial Court.

Learned Advocate Mr. Prajapati would submit that the case against the applicant being that the applicant had supplied the contraband that is Ketamine, weighing approximately 1.5 kg to the accused no. 2 and accused no. 1, who were in the process of sending the same to the United States through courier agency. It is submitted by learned Advocate that except for the statement of a co-accused, there is no other material to show that the applicant was in any manner involved in the offence in question. Learned Advocate would submit that while the investigating agency has expressed an apprehension that the present applicant is a Nigerian citizen and whereas under such circumstances, he may abscond from attending the trial yet, it is submitted by learned Advocate that the present applicant, while he holds Nigerian passport, also has a lifetime visa more particularly the applicant, having married an Indian Citizen and has daughter aged 14 years. Learned Advocate would submit that under such circumstances this Court may consider and release the present applicant on regular bail more particularly having regard to the fact that the applicant is in custody since 18.12.2024.

The present application has been vehemently objected to by learned Advocate Ms. Bhavsar for respondent no. 2 who would submit that apart from statement of the co-accused, which was at the time of the arrest, there are call details records which would clearly show that the present applicant was in constant touch with the other accused. Learned Advocate would submit that considering the large quantity of the contraband which had been recovered and also having regard to the fact that the applicant is not an Indian Citizen, this Court may not exercise jurisdiction in favour of the present applicant.

This Court has heard learned Advocates for the respective parties and perused the FIR as well as order passed by learned Session Court as well as affidavit filed by the investigating officer before the learned Trial Court.

This Court has taken into consideration the law laid down by the Hon’ble Apex Court in the case of Sanjay Chandra v. Central Bureau of Investigation reported in [2012] 1 SCC 40.

This Court has also considered the following aspects:

(i) The fact that except the so called statements of the co-accused and call detail records, there is no other material, whereby the present applicant could be linked to the offence in question.

(ii) As far as call details record are concerned, while they would evidence the fact that a conversation had taken place between two parties, yet, that by itself would not enough material to continue keeping the applicant in custody more particularly since there is no other material which would link the present applicant in the alleged conspiracy.

(iii) Furthermore having regard to the above observation there is no recovery from the conscious possession of the applicant and since the present applicant has been named merely on basis of the call detail records and so called statements of co-accused, the rigors of Section 37 may not be applicable.

(iv) The fact that the applicant has been in custody for more than one year.

(v) The fact that the applicant is stated to be holding a lifetime visa for India and whereas the apprehension of investigating agency could be allayed by imposing stringent conditions.

Hence, the present application is allowed. The applicant is ordered to be released on bail in connection with FIR being F.No. NCB/AZU/CR-33/2024 registered with Narcotics Control Bureau, Ahmedabad Zonal Unit for the offence punishable under Sections 8(C), 22(C), 23(C) and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 on executing a bond of Rs.50,000/- (Rupees Fifty Thousands only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall;

[a] not take undue advantage of liberty or misuse liberty;

[b] not act in a manner injurious to the interest of the prosecution;

[c] surrender passport, if any, to the lower court within a week;

[d] not leave the State of Gujarat without prior permission of the Sessions Court concerned;

[e] Mark his presence at Narcotics Control Bureau, Ahmedabad Zonal Unit once in a month till the trial commences.

[f] furnish the present address of residence in the State of Gujarat to the I.O., NCB, Ahmedabad and also to the Court at the time of execution of the bond and shall not change the residential address without prior permission of the officer concerned/Sessions Court;

The Authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to take appropriate action in the matter.

Bail bond to be executed before the lower court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law.

At the stage of trial, the trial court shall not be influenced by any observations of this Court which are of preliminary nature made at this stage, only for the purpose of considering the application of the applicant for being released on regular bail.

The application is allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent. Direct service is permitted.