NDPS RA 715/2018
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BA 666/2018
IN THE SPECIAL COURT FOR NARCOTIC DRUGS AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
BAIL APPLICATION NO. 666 OF 2018
IN
NDPS REMAND APPLICATION NO. 715 OF 2018
Ahmed Saleh Ahmed Mareai
Yemini Citizen,
Age 32 yrs., Occ.: Student,
R/A Room No.302, 3rd Floor,
Above Bata shop, Anna Nagar,
Tolichowki, Hyderabad – 400 008.
State ­ Andhra Pradesh.

… Applicant
/Accused no. 3
Vs.
The IO.
DRI (MZU/C/INT – 104/2018).

… Respondent.

Appearance:
Ld. Advocate Mr. Bhandary for the applicant/ accused.
Ld. SPP Mr. Saldanha for the prosecution.
CORAM: H.H.THE SPECIAL JUDGE (NDPS)
SHRI. U. M. MUDHOLKAR
(C.R.NO.43)
DATED: 22nd OCTOBER, 2018.
ORAL ORDER
This is an application for bail filed by applicant/accused
Ahmed Saleh Ahmed Mareai on account of his arrest by the officers of
DRI, Mumbai for commission of offences punishable u/s.

8(c) r/w
22(b), Section 23, 28 and 29 of NDPS Act, 1985.
2.

The
prosecution
case
in
nutshell
reveals
that
On
27/02/2018 specific information was received that large quantity of
NDPS RA 715/2018
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BA 666/2018
African leaves known as Catha Edulis, Khat Leave, Miraa Leaves being
smuggled into India from Ethiopia through post. It was also learnt that
some consignments of such leaves were cleared also in the past. Acting
on the said information, the officers of DRI, Mumbai Zonal Unit
intercepted a parcel lying at the Airport Postal Sorting Office (APSO,
Mumbai) on 13/07/2018.

During examination two parcels were
identified and were found containing dry green colour leafy substance
totally weighing 32.80 Kg. appeared to be Khat leaves.

The same
came to be seized under reasonable belief that the same were smuggled
into India in contravention of provisions of NDPS Act.
3.

Further information suggested that such leaves have been
secreted inside Hotel Akbar Khidmat, Room No. 1008, Mohd. Ali Road,
Mumbai, occupied by co­accused Abdulaziz.

The premises were
searched which resulted into seizure of 4156 gms of dry green leaves
purported to be Catha Edulis, Khat Leave, Miraa Leaves and were seized
under the provisions of NDPS Act.

Applicant/accused Ahmed Saleh
Ahmed Mareai and his two associates were summoned to DRI Office
and their statements came to be recorded. Co­accused Abdulaziz
confessed that he was tracking the consignments of Khat leaves arriving
in India and receiving them for further delivery to Yemini people, on
the direction of his associates. Statement of co­accused Amir reflected
that he had indulge into smuggling of Khat leaves into India and
imported the same in the name of Green tea, for monitory benefit.
Statement of applicant/accused no. 3 Ahmed Saleh Ahmed Mareai
reveals that he had purchased 40 Kg of Khat leaves from co­accused
Amir, 15 days back and delivered the same to a person by name Naje in
USA and was getting commission.

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BA 666/2018
During investigation it was revealed that 5 consignments of
such leaves were dispatched from Addis Ababa and were received in
Mumbai by co­accused Abdulaziz.

On the basis of the above
investigation the applicant/ accused and his two associates came to be
arrested on 18/07/2018. The total seizure of 32.8 Kg and 4.1 Kg of
Catha leaves belong to same syndicate. During the further course of
investigation the DRI officers seized in Mumbai 166.19 Kg of Catha
leaves and 112.500 Kg has also been seized in Kolkatta which had also
been sent by the same drugs syndicate from Adis Ababa. Thus the total
quantity of these drugs so far seized is 278.690 Kg, which is a
commercial quantity. At present accused and his two associates are in
judicial custody.

5.

The bail is sought on the ground that applicant/accused is
falsely implicated in the crime. It is specifically contended that the
quantity of Catha Edulis allegedly seized from the possession of the
present applicant/accused comes under the category of non­commercial
quantity and therefore, the bar of Section 37 of the NDPS Act does not
get attracted. It is specifically contended that the other two parcels
seized at Kolkatta having Catha Edulis have been deliberately foisted to
increase the quantity and to pose it as the commercial quantity. In fact,
the seizure effected within the jurisdiction of Kolkatta cannot be taken
into consideration for the purpose of present crime. In other words, the
seized quantity of Catha Edulis is non­commercial as per the notification
No.724 dated 27/02/2018. He will abide by the conditions imposed by
this Court, in the event he is released on bail. On these grounds it is
prayed that applicant/accused be enlarged on bail.

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BA 666/2018
The respondent/DRI contested the petition by filing reply
dated 29/08/2018 as well as on the application itself.

It is mainly
contended that the contraband has been seized by following the due
procedure and the seizure comes under the category of commercial
quantity and therefore, the bar of Section 37 of the NDPS Act gets
attracted, which dis­entitled the applicant for bail.

It is mainly
contended that the applicant and his associates are operating in a
syndicate manner and they are operating from various places in India.
In fact, co­accused Abdulaziz is the kingpin of the entire criminal
activities and the syndicate is operating internationally. He being
foreign national, may abscond if released on bail. So also the
investigation is not yet completed. On these grounds it is prayed that
the application be rejected.
7.

Heard Ld. Advocate Mr Bhandary for applicant & the Ld.

SPP Mr. Sadanha for the State, at length.
8.

It is mainly submitted by the Ld. Defence Counsel Mr.

Bhandary that the quantity of Catha Edulis allegedly seized at Mumbai
is of non­commercial quantity and that the seizure effected at Kolkatta
being effected beyond the jurisdiction of this court cannot be taken into
consideration for the purpose of calculation of quantity. He further
submitted that the statement has already been retracted by the
applicant. So also his passport has already been seized by the
investigation agency and as such there is least possibility of the
abscondance of the applicant.

As such he requested to release the
applicant on bail. Per contra the Ld SPP Mr. Saldanha objected granting
of the application on the grounds reflected in the reply.

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I have carefully gone through submissions of both the sides
and record.

There is no dispute about the fact that as per the
notification dated 27/02/2018 for Catha Edulis the small quantity is
5500 gm and commercial quantity is 275 Kg. It can be gathered from
the various remand reports that the seizure of Catha Edulis was effected
mainly at two places i.e. Mumbai and Kolkatta, during the course of
investigation of the same crime. It is transpired in the investigation that
the applicant and his associates have complicity in connection with the
Catha Edulis seized at both places.

It is also revealed in the
investigation that the applicant and his associates are operating
internationally and in a syndicate manner. When during the course of
investigation seizure is made at different places or even in different
states of India, it cannot be said that the seizure made beyond the
jurisdiction of one court cannot be taken into consideration by the other
court.

Having regard to these aspects the submission of Ld. Advocate
Mr. Bhandary that the seizure at Kolkatta, being beyond the jurisdiction
of this court, cannot be connected with the seizure effected in Mumbai
for calculating the total quantity of contraband, cannot be accepted at
all. In other words, the seizure made at different places, to which the
present applicant and his associates certainly have connection in respect
of the Catha Edulis, will have to be considered in to to and not in
segregation.

The alleged offences, at least at this prima facie stage
when charge­sheet is not yet filed, appear to have been committed in
conspiracy and therefore, the role of the applicant and his associates
cannot be segregated, even for the determination of the quantity or
individual possession.

Admittedly, the total quantity of Catha Edulis
seized so far is 278.690 Kg which is certainly commercial quantity.
Naturally the bar under section 37 of the NDPS Act does get attracted,
dis­entitling the applicant for bail.

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The investigation so far carried out demonstrates the culpability
of the present applicant in the commission of serious offences under the
provisions of NDPS Act, which attracts very stringent punishment. The
investigation in the present matter is at very crucial stage and there is
every possibility that there may be further seizure and the arrest of the
other masterminds. Under such circumstances, his release on bail would
certainly be prejudicial not only to the investigation agency but also to
the society at large. In view of this, in the considered view of this court
the application deserves to be rejected. Therefore, in the light of above
observations and to meet the proper ends of justice following order is
passed :
ORDER
Bail Application No. 666/2018 in NDPS Remand
Application No. 715/2018, filed by the applicant/accused –
Ahmed Saleh Ahmed Mareai is hereby rejected and stands
disposed of accordingly.
22.10.2018.
Typed on
: 22.10.2018.
Checked on : 22.10.2018.
Signed on
: 22.10.2018.

(U. M. Mudholkar)
NDPS Special Judge,
Gr. Bombay.

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BA 666/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME
NAME OF STENOGRAPHER
:
:
24.10.2018, 12.30 pm.
Mrs. Supriya. S. Girkar
Name of the Judge (With Court HHJ Shri. U. M. Mudholkar
Room No.)
C.R. No.43
Date
of
Pronouncement
JUDGMENT/ORDER
of 22.10.2018.

JUDGMENT/ORDER
P.O. on
by 22.10.2018.

signed
JUDGMENT/ORDER uploaded on
24.10.2018.