NDPS Spl RA 1208/2018
1
BA 936/2018
IN THE SPECIAL COURT FOR NARCOTIC DRUGS AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
BAIL APPLICATION NO. 936 OF 2018
IN
NDPS REMAND APPLICATION NO. 1208 OF 2018
Ismail Barkat Ali Shaikh @ CheChe
Age – 38 yrs., R/A New MHADA Transit
Camp Chawl no. 31, Room No. 257,
Sai Darshan Bldg., Shaikh Mistri
Darga Road, Antop Hill,
Wadala, Mumbai – 37.
V/s.
State of Maharashtra
(ANC, Worli Unit, C.R. No. 65/18
dated 07/12/2018)
… Applicant/
Accused
… Respondent
Appearance :
Ld. Advocate Mr. Mishra for the applicant/accused.
Ld. APP Mr. Panjwani for the State.
CORAM : H.H. THE SPECIAL JUDGE (NDPS)
SHRI U. M. MUDHOLKAR
(C.R.NO.43)
DATE : 5th JANUARY, 2019.
ORAL ORDER
This is an application for granting of a bail. The
applicant/accused Ismail Barkat Ali Shaikh @ CheChe was arrested in
C.R. No. 65/2018, registered at ANC, Worli Unit, Mumbai for the
alleged violation of Sec.8(c) r/w Sec. 22 of the NDPS Act, 1985.
2.
The prosecution case in nutshell reveals that the officers of
respondent were on patrolling duty and also equipped with the raiding
material including the brass seal. It is alleged that when they reached
NDPS Spl RA 1208/2018
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BA 936/2018
the spot, present applicant/accused Ismail Barkat Ali Shaikh @ Che
Che was found loitering in suspicious circumstances.
On taking the
search of his baggage 440 phensedyl cough syrup bottles, total
containing 88 gm codeine phosphate were found in the possession of
the present applicant/accused. Thereafter, the applicant/accused was
placed under arrest for violation of provision of NDPS Act as above.
After cessation of ANC custody, presently the applicant is in judicial
custody.
3.
The bail is sought on the grounds that applicant/accused is
falsely implicated in the crime. The quantity of Codeine Phosphate, in
cough syrup, if calculated properly then it does not cross a limit of
commercial quantity. In other words, the quantity of Codeine Phosphate
alleged to have been seized from the possession of the applicant/
accused is below the commercial quantity. Hence, Sec.37 of the NDPS
Act, 1985, does not apply to the case. He has physical problem and
needs medical treatment. The applicant/accused is having deep roots in
the society. He is ready to abide by the conditions imposed by this
Court, while releasing him on the bail. Investigation is almost
completed. For all the aforesaid reasons the applicant is entitled to be
released on bail. On these grounds it is prayed that applicant/ accused
be enlarged on bail.
4.
The respondent/State contested the petition by filing reply
dated 21/12/2018. It is mainly contended that the phensedyl bottles
were found in the possession of the applicant and that the same have
been seized from his possession by strictly following the provisions
under the NDPS Act. It is further contended that as per the notification
dated 18/11/2009 the entire mixture of the Narcotic Drug or
NDPS Spl RA 1208/2018
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BA 936/2018
psychotropic substance needs to be considered, which amounts to
commercial quantity in the present case. It is further contended that the
applicant was possessing the said Corex without any valid document.
On these grounds it is prayed for the rejection of the application.
5.
Heard Ld. Advocate Mr. Mishra for applicant & the Ld. APP
Mr. Panjwani for the State at length.
6.
It is submitted by the Ld. Defence Counsel that the quantity
of Codeine Phosphate allegedly found in the possession of present
applicant needs to be considered in the light of observations in the
judgment in the case of Shahabuddin and another V/s. State of
Assam reported in 2012 (3) GAU LT 440. According to the same the
alleged quantity of the Codeine Phosphate would be below commercial
quantity. As such the bar of Sec. 37 of the NDPS Act would not get
attracted. As regards the calculation of the drug Codeine Phosphate
found in the Corex bottles he also relied upon judgment in the case of
Ankush Chauhan V/s, State of H.P. decided on 25/04/2017 in Cr.M.P.
(M) No. 432/2017, wherein also the exact quantity of Codeine
Phosphate in the entire mixture of syrup called phensedyl was
considered and bail was
granted to the applicant in that case.
According to him applicant is having deep root in society and there are
no chances of her absconding, if released on bail. As such he requested
to allow the bail application.
7.
As against this, it is submitted by the Ld. APP Shri.
Panjwani for the State that as per the notification to the entire quantity
of the mixture of Codeine Phosphate needs to be calculated, which
amounts to commercial quantity and as such there is bar of Sec. 37 of
NDPS Spl RA 1208/2018
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NDPS Act, for release of the applicant on bail. He further submitted
that in the event of release of applicant/accused on bail, there is every
likelihood of his engaging in similar nature of activity of selling
contraband and there is apprehension of his absconding from the course
of justice. Hence, prayed for rejection of the application.
8.
I have carefully considered the submissions of both the
sides and record.
So far as quantity of Codeine Phosphate in the
phensedyl bottles allegedly found in the possession of the present
applicant needs to be calculated, in the present case as per the
calculations which are reflected in para no. 34 of the judgment in the
case of Shahabuddin of Hon’ble Gauhati High Court. While making that
calculation the Hon’ble High Court has relied upon the calculations
which were carried out in the case of Micheal Raj V/s. Intelligence
officer of NCB, 2008 5 SCC 161 and Sayyad Aalam V/s. State of
Assam reported in 2011 Cr.L.J. 3140. The same methodology appears
to have been applied by the Hon’ble Himachal Pradesh High Court
while deciding the bail application of the applicant Ankush Chauhan,
cited supra.
Very recently taking into consideration all the earlier
pronouncements including that of the Hon’ble Apex Court, in the case of
Rajveer Singh @ Raju V/s. State of Punjab in CRMM350802018
decided on 12/08/2008, the Hon’ble Punjab & Haryana High Court
observed as under:
“In view of the above discussion, it is held that in case of a
mixture/solution containing neutral or nonpsychotropic
substance as well as the narcotic/ psychotropic substance, it is
only the quantity of such narcotic/ psychotropic substance
present in such mixture/solution; which is to be taken into
counting for the purpose of determining the ‘commercial
quantity’ of such narcotic/ psychotropic substance. The neutral
solution or nonpsychotropic substance is not to be counted
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towards the commercial quantity of said narcotic psychotropic
substance present in mixture/solution.”
9.
No counter judgment has been cited by the prosecution/
Learned APP Mr. Panjwani to take a different or contrary view than the
one which is reflected in the above judgments.
Under these
circumstances, at this stage, there is no alternative before this court
than to accept the argument submitted by Ld. Adv. Mishra for the
applicant. Taking into consideration the reply of ANC and calculations
reflected in the judgments cited supra if the quantity of Codeine
Phosphate in 440 phensedyl is considered then the total quantity of
Codeine Phosphate in those bottles would be 88 gm. As per entry no.
28 of the table, the quantity of 1 Kg. and above would be commercial
quantity. As per the above calculations the total quantity of Codeine
Phosphate is 88 gm which is noncommercial in nature. Apart from this
the parameters on which the bail was granted to Ankush Chauhan in
the judgment cited supra are squarely applicable to the case at our
hand.
10.
It is equally a matter of record that since her arrest on
07/12/2018 he is in the custody and by this time the entire
investigation might have been completed except collection of CA
certificate.
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
accused behind the bars till then. There is neither evidence nor
allegation of any criminal antecedence to the discredit of the applicant.
The medical papers placed on record show that applicant is suffering
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from physical illness which would be requiring treatment in nearest
future. To minimise the chance of his abscondance, condition can be
imposed to produce documentary evidence regarding his permanent
place of residence. Under these circumstances, his further detention in
the judicial custody appears to be unwarranted. 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.
936/2018
in
NDPS
Remand
Application No. 1208/2018 is hereby allowed.
2.
The applicant/accused – Ismail barkat Ali Shaikh @ Che
Che, in C.R. No. 65/2018, registered with Anti Narcotic Cell, Worli
Unit, Mumbai, be released on bail on her executing P.R. Bond of
Rs.75,000/ (Rupees Seventy 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.
The
applicant/accused
shall
furnish
the
permanent
residential address with documentary evidence such as AADHAR
Card or Ration Card or PAN Card and cell number of himself.
5.
Application is hereby disposed off accordingly.
05.01.2019.
Typed on
: 05.01.2019.
Checked on : 05.01.2019.
Signed on
: 05.01.2019.
(U. M. Mudholkar)
NDPS Special Judge,
Gr. Bombay.
NDPS Spl RA 1208/2018
7
BA 936/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME
NAME OF STENOGRAPHER
:
:
05.01.2019, 05.30 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 05.01.2019.
JUDGMENT/ORDER
P.O. on
by 05.01.2019.
signed
JUDGMENT/ORDER uploaded on
05.01.2019.