At This Stage WhatsApp Chats Are Not Substantial & Sufficient To Hold Role Of Accused: NDPS Court Grants Bail To Australian Architect

Special NDPS Judge HS Satbhai observed that the NCB had no case against the accused and at this stage the whatsapp chats between him and other co-accused relied upon by the central agency to prove his involvement are not substantial and sufficient to prove his role as a drug peddler/supplier.

Bartels is accused of committing offences under Section 8(c) read with Section 20(b)(ii)A. 27 and 29 of the NDPS Act. On November 11, 2020, a house search of the accused was made by the officers of the NCB. However, no contraband was recovered from the accused, no incriminating material was found in the said exercise.

The Australian national is one amongst the many arrests made by the Bureau in relation to its investigation in the Sushant Singh Rajput case.

Senior Advocate Aabad Ponda appeared on behalf of the accused along with Advocate Subhash Jadhav and Special Public Prosecutor Atul Sarpande for NCB.

Court noted that the maximum punishment for offences applied in case of the present accused is one year, thus-

"In such circumstances, a notice contemplated under Section 41 A of CrPC to the accused was necessary. It is informed that the accused was summoned by the NCB, Mumbai and in response to the summons he appeared before the agency. Had it been the state of affairs, in view of sub-section 3 of Section 41 A of CrPC, it was necessary for the Investigating Officer to assign the reasons for making arrest of the accused. (Basheer Vs State of Kerala (2004)3 SCC 609). But the Memo of Arrest doesn't speak assigning the reasons for the arrest of the accused."

Moreover, the Judge pointed out the fact that the NCB, after arrest of accused on his production before the Metropolitan Magistrate, did not ask for his NCB custody. He said-

"It goes to show that there was no material available with the NCB to interrogate the accused and to make further investigation explaining that he is not the consumer of the drugs, but his role is as a peddler/supplier of drugs."

Referring to the NCB's case against the accused relying upon the statements of other co-accused namely Agisilaos Demetriades and Nikhil Ryston Saldhana along with the whatsapp chats exchanged between the accused and Agisilaos, Court observed-

"From the said messages it is tried to contend that the accused is dealing in drugs as a peddler and supplier of drugs. But at this stage, those Whatsapp messages are not substantial and sufficient to hold the role of the accused as a peddler/supplier of drugs.

In case in future, if the cogent material is collected by the NCB demonstrating the role of the accused as a peddler/supplier of drugs then scenario would be different."

Court cited the Supreme Court's decision in Sujit Tiwari Vs State Of Gujarat. Finally grating bail, the Special NDPS Judge observed-

"In absence of any substantial material, taking into account the fact that no contraband material was found/recovered from accused and except the statements of the accused and whatsapp messages, there is no substantial material to treat the accused as a peddler/supplier of drugs, it may not be justified to refuse to extend the concession of bail."

Court also noted that co-accused Nikhil Saldhana has also been enlarged on bail and the other co-accused Agisilaos Demetriades, whose role is similar to Paul Bartels in the case has been granted bail as well. Thus, on the ground of parity the present accused is also required to be released on bail, Court said.

Granting bail to Bartels, Court directed him to furnish a PR Bond of Rs.1,00,000 and following are some of the conditions imposed-

(i) The applicant/accused shall surrender his passport to NCB, Mumbai.

(ii) The applicant accused shall not leave the limits of Mumbai, until the disposal of trial, without the permission of the Court.