NON­REPORTABLE

IN THE SUPREME COURT OF INDIA  CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NO.1897 OF 2019

(@SPECIAL LEAVE PETITION (CRIMINAL) NO. 3478 OF 2019)

SUJIT TIWARI                …APPELLANT(S)    

Versus

STATE OF GUJARAT & ANR.        …RESPONDENT(S)

J U D G M E N T

Deepak Gupta, J.

1. This bail application has been filed by one of the accused

and we are giving the facts necessary only for the decision of his

case.

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2. The Indian Coast Guard received some intelligence inputs

with regard to suspicious activities of a ship MV Hennry.

Therefore, the Indian Coast Guard took their own ship and

intercepted the vessel on 29.07.2017.  The intercepted vessel MV

Hennry was flying a flag of Panama.  The Master of the ship was

one  Suprit  Tiwari, and there  were  7  other crew members, all

Indian nationals. The Master and the crew members were not in

possession of any licence, permit and could not even produce any

document pertaining to departure from last port of call i.e. Abu

Dhabi in U.A.E. or for the next port of call, i.e.,  Bhavnagar in

Gujarat.   It is alleged that the Master Suprit Tiwari when

questioned admitted that they were carrying contraband

substance in the nature of narcotics in the ship.   He identified

the locations and approximately 1445 kg of narcotics substance

in 1526 packets was recovered.  This was hidden in two cavities

modified in the two tanks on both sides at stern of the vessel and

also  in the bollards and railings on both sides of the weather

deck.   These cavities and railings had been fabricated for

concealing narcotics which were stored in water proof packets.

3. Information in this regard was given to the Narcotics

Control Bureau, Ahmedabad (for short ‘NCB’).   The NCB carried

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out investigation and after completing some investigation, filed a

complaint before the Special Judge, NDPS Court at Porbandar in

Gujarat on 22.12.2017 against the Master and the 7 crew

members and 5 other persons including the appellant Sujit

Tiwari, who is the brother of the Master of the ship Suprit Tiwari.

In the complaint it is mentioned that after the Indian Coast

Guard informed the NCB, a team of NCB went to Porbandar and

once the ship MV Hennry came to the jetty on 31.07.2017, the

same  was  boarded  by the officials of the  NCB, including the

Intelligence Officer.   Information was collected by the officials of

the Indian Coast Guard and the Intelligence Officer opened one of

the packets and found that it contained a substance which was a

light brownish powder which on testing gave positive result for

heroin.  Thereafter, all the 8 persons i.e., Master and crew of the

ship were detained and the contraband substance was off­loaded

from the vessel and taken to the premises of the police

authorities.   Thereafter, the narcotic substance was weighed,

samples were taken and further investigation was done.

4. According to Suprit Tiwari he was working for an Iranian

National Sayed Ali Moniri (Seyed Mahmoud) and it was Sayed Ali

Moniri who purchased the heroin and got the cavities made in

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the ship.  He offered  huge  amounts to the  Master and crew

members to  illegally transport the heroin.   Two crew members

who did not accept the offer left the ship.

5. According to Suprit Tiwari, 4 Iranians namely Ebrahim,

Mustafa, Mohammad and Rasool accompanied them on the ship

and they started for Sharjah and reached Dubai the next day.

About 1500 kg of heroin was loaded on the ship in Gwadar Port,

Pakistan and 1 Pakistani National named Khalid Mohammad also

joined the accused here.   However, instead of going towards

Egypt, as directed by their boss, Suprit Tiwari and crew members

decided to bring the ship to India and changed the name of their

vessel from Prince­II to  MV Hennry.  Suprit Tiwari and crew

members after landing in India decided to sell all the drugs and

get the ship dismantled as soon as the drugs got delivered to

Vishal Kumar Yadav and Irfan Sheikh who assured them to buy

the entire consignment.  According to Suprit Tiwari, all the non­

Indian crew members, i.e. four Iranians and one Pakistani

national deboarded the ship after concealment of drugs.   

6. The Master and crew members destroyed the Automatic

Identification System  (AIS)  of the ship so  that it  could not  be

traced by the owner or any other person.   In his voluntary

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statement, Suprit Tiwari revealed that he had informed his

brother Sujit Tiwari about some illegal activity in which he was to

make a huge amount of money and he also told Sujit  that he

would get  Rs.  50 crores through hawala.  The appellant  Sujit

Tiwari was arrested on 04.08.2017.   The allegation against the

appellant is that he was part of the conspiracy to smuggle the

huge quantity of contraband into India and therefore he should

not be granted bail.

7. Mr. Siddharth Dave, learned senior counsel for the

appellant urges that there is no material to connect the appellant

with the crime.  He has also argued that the appellant is entitled

to a default bail since the investigation has not been completed

within the period prescribed under Section 167 of the Code of

Criminal Procedure, 1973 (for short ‘CrPC’) read with Section 36A

of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for

short ‘NDPS Act’).

8. On the other hand, Mr. K.M. Natraj, learned ASG appearing

for the respondents submits that keeping in view the bar of

Section 37 of the NDPS Act, no bail can be granted to the

appellant.   As far as default bail is concerned he submits that

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since the complaint was filed within time, the appellant cannot

get  benefit  of  Section 167 CrPC read with  Section 36A of the

NDPS Act even if investigation has not been completed.   While

deciding this bail application we are conscious of the provisions

of Section 37 of the NDPS Act which lays down two limitations;

one, that the court is prima facie of the view that the appellant is

not guilty of the offence and secondly, that he is not  likely to

commit any offence while on bail.

9. We have gone through the statement made by the appellant

under Section 67 of the NDPS Act.   Without going into the

question  whether the statement is admissible or  not, as this

matter has been referred to a larger bench, we are, for the

purpose of this case, taking the statement into consideration

even though the appellant has resiled from the same.

10. The prosecution story  is that the appellant  was aware of

what his brother was doing and was actively helping his brother.

At this stage we would not like to comment on the merits of the

allegations levelled against the present appellant.  But other than

the few WhatsApp messages and his own statement which he has

resiled from, there is very little other evidence.   At this stage it

appears that the appellant may not have even been aware of the

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entire conspiracy because even the prosecution story is that the

brother himself did not know what was loaded on the ship till he

was informed by the owner of the vessel.  Even when the heroin

was loaded in the ship it was supposed to go towards Egypt and

that would not have been a crime under the NDPS Act.  It seems

that Suprit  Tiwari  and other 7 crew members then decided to

make much more money by bringing the ship to India with the

intention of disposing of the drugs in India.   During this period

the Master Suprit Tiwari took the help of Vishal Kumar Yadav

and Irfan Sheikh who had to deliver the consignment to Suleman

who had to arrange the money after delivery.  The main allegation

made against the appellant is that he sent the list of the crew

members after deleting the names of 4 Iranians and Esthekhar

Alam to Vishal Kumar Yadav and Irfan Sheikh through

WhatsApp  with a view to make their disembarkation  process

easier.   Even if we take the prosecution case at the highest, the

appellant was aware that his brother was indulging in some

illegal  activity  because obviously  such huge amount  of  money

could not be made otherwise.  However, at this stage it cannot be

said with certainty whether he was aware that drugs were being

smuggled on the ship or not,  though the allegation  is  that he

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made such a statement to the NCB under Section 67 of the NDPS

Act.   

11. At this stage, without going into the merits, we feel that the

case of the  appellant  herein  is totally  different from the other

accused.   Reasonable possibility is there that he may be

acquitted.   He has been behind bars since his arrest on

04.08.2017 i.e. for more than 2 years and he is a young man

aged about 25 years.  He is a B.Tech Graduate.  Therefore, under

facts and circumstances of this case we feel that this is a fit case

where the appellant is entitled to bail because there is a

possibility that  he  was  unaware  of the illegal  activities  of  his

brother and the other crew members.  The case of the appellant

is different from that of all the other accused, whether it be the

Master of the ship, the crew members or the persons who

introduced the Master to the prospective buyers and the

prospective buyers.

12. We, however, feel that some stringent conditions will have to

be imposed upon the appellant.   

13. We direct that the appellant Sujit Tiwari be released on bail

upon furnishing a bail bond in the sum of Rs.10,00,000/­ (Ten

Lakhs only), with two sureties of the like amount to the

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satisfaction of the Special Judge, NDPS Court at Porbandar on

the following conditions:­

(a) The appellant shall deposit his passport, if any

with the Court.   

(b) The appellant shall either stay in Porbandar or

Kolkata.  He shall not go to any other place.   

(c) The appellant shall give his cell­phone number to

the police authorities and shall not change his cell­phone

number without permission of the trial court.   

(d) Whether the appellant remains in Porbandar or

Kolkata, in Kolkata he shall report to the Entally police

station daily at 09:00 A.M. , and in Porbandar he shall

report  to the  Investigating Officer of the NCB at  09:00

A.M. everyday.

(e) The appellant  shall join  the  investigation as and

when called upon to do so before the authorities of the

NCB.   

(f) The appellant shall not in any manner hamper or

try to interfere in the investigation.

(g) Once  the trial  begins, the  appellant  shall  not in

any manner try to delay the trial.   

14. If the appellant violates any of these terms, the NCB shall be

entitled to straightaway apply to the Special Judge for

cancellation of his bail.  

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15. The appeal is disposed of on the aforesaid terms.   Pending

application(s), if any, stand(s) disposed of.

……………………………….J. (L. Nageswara Rao)

………………………………..J. (Deepak Gupta)

New Delhi January 28, 2020

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