NDPS RA 923/2018
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BA 696/2018
IN THE SPECIAL COURT FOR NARCOTIC DRUGS AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
BAIL APPLICATION NO. 696 OF 2018
IN
NDPS REMAND APPLICATION NO. 923 OF 2018
Ibrahim Abdallah Shabani,
Age ­ 32 yrs., R/A – 235, St. Name Kolabi,
Dist­ Morogoro, Tanzania.

… Applicant
/ Accused
Vs.
Intelligence Officer,
Narcotics Control Bureau,
Mumbai Zonal Unit, Mumbai.
(F. No. NCB/BZU/CR­16/2018).

… Respondent
Appearance:
Ld. Advocate Mr. Dilip Mishra for the applicant/ accused.
Ld. SPP Smt. Vibhavari Pathak for the prosecution.
CORAM: H.H.THE SPECIAL JUDGE (NDPS)
SHRI. U. M. MUDHOLKAR
(C.R.NO.43)
DATED: 30th OCTOBER, 2018.
ORAL ORDER
This is an application for bail filed by applicant/ accused
Ibrahim Abdallah Shabani on account of his arrest by the officers of the
NCB, Mumbai for commission of offences punishable u/s. 9(A) r/w
25(A), 28 and 29 of NDPS Act, 1985.
2.

The prosecution case in nutshell reveals that the officers of
respondent received an information from the reliable source that the
present applicant is dealing with controlled substance called Ephidrine
and he was about to come at the given spot.

Hence, the raid was
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arranged at the spot given in the information and it is alleged that the
present applicant/accused was found having in his possession 6 Kg of
Ephidrine in the form of white crystalline powder.

Thereafter, the
applicant/accused was placed under arrest for violation of provision of
NDPS Act,1985 as above. After cessation of his NCB custody, presently
he is in judicial custody.
3.

The bail is sought on the ground that applicant/accused is
falsely implicated in the crime. It is specifically contended that the
Ephidrine being the controlled substance, the maximum punishment
provided for the offence is upto 10 years and therefore, the bar of
Section 37 of the NDPS Act does not get attracted. The passport is in the
custody of the investigating agency.

He is ready to abide by the
conditions imposed by this Court, while releasing him on the bail. On
these grounds and on the ground of innocence it is prayed that
applicant/ accused be enlarged on bail.
4.

The respondent/State contested the petition by filing reply
dated 19/10/2018. It is mainly contended that the seizure of 6 Kg of
Ephidrine from the possession of the applicant/accused is effected by
following due procedure. If he is enlarged on bail, he will tamper with
the evidence and may get involved in the similar activities again and
may abscond and will not be available for trial. It is further contended
that the CA certificate is not yet received and in the event the said drug
is found to be of such a type that the accused would be not entitled for
bail then he will not appear before the court for facing the trial. On
these grounds it is prayed that the application be rejected.
5.

Heard Ld. Advocate Mr. Mishra for applicant & the Ld. SPP
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BA 696/2018
Ms. Pathak for the State, at length.
6.

The submissions of both the sides were as per the contents
of the application and reply.

I have carefully gone through the
submissions of both the sides and record. The present case pertains to
seizure of substance called Ephidrine. Admittedly, the Ephidrine being
a controlled substance the quantity thereof cannot be termed either as
small, inter­mediate, commercial or non­commercial. For this purpose
reliance can be placed on the judgment in the case of Rafael Palafox
Garcia V/s. Union of India reported in 2009 Cr. L. J. 446, wherein it
is observed that
“There is extensive amendment introduced in NDPS Act.
The offence falling under Section 9A r/w Section 25A is
punishable with imprisonment which may extend to 10 years
and also fine which also may extend to Rs. 1 Lakh. There was
an embargo on the powers of the Court in granting bail under
the old provisions of Section 37(1)(b) of the Act. From
Section 37(1)(b) the term “imprisonment of 5 years or more”
has been deleted and substituted by “for offence under Section
19 or Section 24 or Section 27A and also for offences
involving commercial quantity”, the case of the applicant is
not more covered by Section 37(1)(b) of the Act. The concept
of commercial quantity does not apply to controlled substance
in view of the provisions relating to commercial quantity
specially Section 2(viia) and Section 2(viid) of the Act and the
notification issued by the Government specifying the small
quantities and commercial quantities also shows that this
concept is peculiar to narcotic Drugs and Psychotropic
Substances.”
7.

In view of the judgment cited supra, it is clear that the rigors of
section 37 of the NDPS Act does not get attracted to the case at our hand. So
far as the submission regarding change of type of substance on the receipt of
the CA report is concerned, the same can be dealt with at appropriate time.
At this stage when the investigation agency has come out with the case that
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the seized substance is Ephidrine then we must proceed to accept the nature
of the substance as Ephidrine and not otherwise.

8.

It is specifically pleaded by the applicant/accused that his
passport has been seized by the NCB authority.

The copy of the
panchanama is not made available either by investigation agency or the
Ld. SPP for perusal of this court. The seizure of the passport of the
applicant/accused, as contended in the application, is not specifically
denied in the reply. Since the seizure has been made at the Airport and
the applicant is the foreigner this court finds substance in the
submission of Ld. Advocate Mr. Mishra that the passport of the
applicant has been seized by the NCB. The applicant being foreign
national would not be able to travel abroad without having his passport
in his possession. Under these circumstances, there is minimal chance
of his abscondance.
9.

It is equally a matter of record that since his arrest on
13/09/2018 applicant is in the custody and the complaint (charge­
sheet) is yet to be filed. By this time the entire investigation, except
collection of CA certificate, might have been completed. So also except
the panch witnesses all the witnesses in the case would be public
servants and thereby, there is no likelihood of tampering with the
evidence or otherwise. Now nothing is to be recovered or discovered on
pointing out of the applicant. The conclusion of the trial in the present
case would take sufficient long time and it is not desirable to keep the
applicant behind the bars till then.

Under these circumstances, his
further detention in the judicial custody appears to be unwarranted.
There is neither allegation nor record of criminal antecedent to the dis­
credit of the applicant. In view of the law laid down in the cases of
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Samson Osobai V/s. The State of Maharashtra and another in Cri.
Bail Application No. 3287/2006 decided on 18/09/2006 and Shri.
Dinh Khac Cuong @ Tony V/s. DRI Mumbai and another in Cri. Bail
Application No. 250/2012 decided on 09/03/2012, simply because
the applicant/accused happen to be the foreign national, his bail
application cannot be rejected on that sole ground. In view of forgoing
discussion, I conclude that application deserves to be allowed and the
interest of prosecution can be secured by imposing following stringent
conditions :
ORDER
1.

Bail
Application
No.

696/2018
in
NDPS
Remand
Application No. 923/2018 is hereby allowed as under:
2.

The applicant/accused – Ibrahim Abdallah Shabani, in C.R.

16/2018 registered with NCB, Mumbai, be released on bail on his
execution of P.R. Bond of Rs.1,25,000/­ (Rs. One Lakh Twenty
Five Thousand only), with one or two sureties in the like amount.
3.

The applicant/accused shall not directly or indirectly
dissuade any of the prosecution witnesses from deposing in the
Court or tamper with the prosecution evidence in any way.
4.

He shall not leave the territory of India without prior
permission of the court and his passport shall not be returned to
him without prior permission of this court.
5.

Bail Application stands disposed off accordingly.

30.10.2018.
Typed on
: 30.10.2018.
Checked on : 01.11.2018.
Signed on
: 01.11.2018.

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

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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME
NAME OF STENOGRAPHER
:
:
01.11.2018, 04.00 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 30.10.2018.

JUDGMENT/ORDER
P.O. on
by 01.11.2018.

signed
JUDGMENT/ORDER uploaded on
01.11.2018.