IN THE COURT OF THE SPECIAL JUDGE FOR N.D.P.S. CASES
AT GREATER MUMBAI
BAIL APPLICATION NO. 687 OF 2022
IN
C. R. No. 21/2022
Babirye Grace
Age : 28 yrs.,
R/o : Priyanka Apartment,
1st floor, Moregaon Talao,
Pragati Nagar, Nalasopara (E),
Dist. – Palghar.
…Applicant/Accused
V/s.
The State of Maharashtra
ANC, Ghatkopar Unit.
…Respondent
Appearance :Mr. Gorakh, Adv. for applicant/accused.
Mr. Rajput, APP for respondent/State.
CORAM : HIS HONOUR THE SPECIAL JUDGE
V. V. PATIL (C.R. NO. 44).
DATE
: 29th April, 2022
ORDER
The present application for grant of bail has been filed by accused
Babirye Grace u/sec. 439 of Cr.P.C., who has been arrested by the
officers of respondent on 20.03.2022 for violation of offences
punishable u/sec. 8(c) r/w 22 of NDPS Act, 1985 in C.R. No. 21/2022.
2.

It is the case of prosecution that specific information was received
on 20.03.2022 that one African lady by name Babirye Grace and one
person by name
Ajamiya Sayyed are dealing in the business of
Mephedrone (MD) in the Mumbai and Suburban and they are coming
to sell the MD to their customers near Dudh sagar Society bus stop,
Dudh Sagar Road, Goregaon (E), Mumbai between 12.15 to 12.30 hrs.

Based on the information, the respondents laid the tap and arrested the
applicnat along with accused no.2 on the alleged spot and upon the
search of the applicant, they recovered 30 gms. of MD and and 52 gms.
of MD was
recovered from possession of accused no.2.

Said
contraband was seized under panchanama. FIR came to be registered
against both the accused.
3.

The present applicant/accused has sought bail on the grounds
that she has been falsely implicated in the case and quantity alleged to
be recovered from
the applicant is 30 gms. of MD, which is non-
commercial quantity and therefore bar u/sec. 37 of NDPS Act is not
attracted. Applicant undertakes to abide by any terms and condition as
this Court may deem fit. Hence she prayed for releasing her on bail.
4.

Application is opposed by the respondent by filing say vide Exh.2.

It is submitted that applicant/accused no.1 and accused no.2 were
apprehended together with 30 gms. of MD and 52 gms. of MD
respectively. Information was also received about both the accused
which shows that they
committed offence in conspiracy with each
other. Therefore, Sec. 29 of NDPS Act is not applicable. The applicant
is a citizen of Uganda and is a foreign national. If she is released on
bail, she is likely to abscond and may not be available for trial. Hence
application be rejected.
5.

Perused application and say. Heard both sides.

6.

It is submitted on behalf of applicant that 30 gms. of MD is
recovered at the instance of applicant. Said quantity is non-commercial
quantity and bar of Sec. 37 of NDPS Act is not applicable to grant bail.
The present applicant has no criminal antecedents. As against this, it is
submitted
by
Ld.

APP
that
the
recovery
made
from
the
applicant/accused is an intermediate quantity and offence is punishable
upto 10 years. Applicant hatched conspiracy with accused no.2 and
committed offence. Further during investigation it was revealed that
the applicant and accused no.2 are dealing in the business of sale and
purchase of contraband MD. Hence bail application be rejected.
7.

Now, upon inspection of documents, it revealed that specific
information regarding both the accused was received that they are
dealing in business of contraband MD and they sale it
to their
customers in Mumbai and Mumbai suburban area. Further information
was received that on the specific time and specific date, said persons
with their specific description are coming at the spot in front of Dudh
Sagar Bus Stop, Dudh Sagar Sahakari Grihnirman Society Ltd.,
Goregaon (E), Mumbai. Accordingly, trap was laid and both the accused
were apprehended with 30 gms. of MD and 52 gms. of MD in their
possession. It is therefore, argued by Ld. APP that this fact itself show
that there was conspiracy between both the accused to commit the
offence. As against this, it is submitted by Ld. Adv. for the applicant
that merely because information was received regarding both the
accused and they were apprehended at the same time, it doesn’t mean
that there was conspiracy between them and hence recovery made from
the applicant be treated as independent recovery and it cannot be
connected with recovery made from co-accused.
8.

In support of his submission, Ld. Adv. for applicant relied upon
authority of Sangeeta Gaikwad V/s. State of Maharashtra in Cri.
Application No. 2597/2006 dtd. 3.8.2006, wherein Hon’ble High Court
relied upon the authority of Hon’ble Apex Court in the ruling reported
in 2005 ALL MR(Cri.) 229 (SC), where the Hon’ble Apex Court held
that where two persons found together Heroin more than the
commercial quantity but individually less than the commercial quantity,
Sec. 29 is not attracted. It may be true that in a given case there might
be independent evidence of conspiracy. It is further held that there is
no material to indicate the conspiracy between the applicant and the
other accused. Therefore, applicant is entitled to grant of bail.
9.

In the present case also, though prosecution claimed that
applicant and accused no.2 hatched conspiracy in commission of
offence,
there is no
prima-facie
evidence
regarding conspiracy.

Therefore in absence of independent evidence regarding conspiracy, it
cannot be said that applicant and accused no.2 hatched conspiracy only
because they were
found together. Hence recovery made from the
applicant needs to be considered independent recovery.
10.

As stated above, applicant was apprehended with 30 gms. of MD
which is non-commercial quantity and therefore, stringent provisions of
Sec. 37 of NDPS Act would not apply. Further as submitted on behalf of
applicant, she has no criminal antecedents. She is ready to abide by all
the terms and conditions imposed by the Court. In such circumstances,
she cannot be denied bail merely because she is foreign national. So far
as apprehension of prosecution regarding absconding and tampering
with evidence is concerned, it can be taken care of by imposing
stringent conditions. Hence I hold that applicant is
entitled to be
released on bail. Hence I proceed to pass following order :
ORDER
1. Bail Application no. 687/2022 is hereby allowed.

2. Applicant/accused Babirye Grace be released in C.R. No. 21/2022 on
executing P. R. Bond of Rs.50,000/- (Rs. Fifty Thousand only) with one
or more sureties in the like amount.
3. Applicant/accused to attend office of ANC, Ghatkopar Unit on every
Wednesday between 1.00 p.m. to 4.00 p.m. till filing of charge-sheet.
4. Applicant/accused and her sureties shall provide their respective
mobile
numbers
and
correct
address
of
residence
alongwith names of two relatives with their mobile numbers and
addresses.
5. Applicant/accused shall produce the proof of her identity and
proof of residence at the time of executing the bail bond.
6.
Applicant/accused
shall
not
tamper
with
prosecution
witnesses/evidence in any manner and co-operate in early disposal of
trial.
7. Applicant/accused shall not commit similar offence while on
bail.
8. Ld. Advocate for applicant/accused prayed for allowing
provisional cash bail for period of eight weeks. Hence, permission
granted to furnish provisional cash bail of Rs.50,000/- for period of
eight weeks.
9. Accordingly, Bail Application no. 687/2022 is disposed off.

(V. V. PATIL)
Special Judge (N.D.P.S.),
City Civil & Sessions Court,
Gr. Mumbai.

Date : 29.04.2022
Dictated on
Transcribed on
Signed on
: 29.04.2022
: 29.04.2022
: 29.04.2022
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE
30.04.2022
Name of the Judge
TIME
NAME OF STENOGRAPHER
11.30 a.m.

Mrs. S. W. Tuscano
HHJ Shri V. V. Patil
(CR No.44)
Date of Pronouncement of
Judgment/Order.
Judgment/order signed by P.O on
Judgment/order uploaded on
29.04.2022
29.04.2022
30.04.2022