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BA 814/18 (RA 1093/18)
IN THE COURT OF SPECIAL JUDGE FOR N.D.P.S CASES FOR
GREATER BOMBAY AT MUMBAI
CRIMINAL BAIL APPLICATION NO.814/2018
IN
N.D.P.S. R.A. No. 1093/2018
Lionel Raphael Silviera,
Age 32 yrs.,
r/o. B­106, Vikas Towers,
Mogra Village, Andheri(E),
Mumbai 400 069.

..Applicant/Accused no.1
V/s.
Union of India
through Intelligence Officer,
NCB, Mumbai Zonal Unit.

..Respondent/ Complainant
Appearances:­
Ld. Advocate Mr. Ravi Gurnani for the applicant/ accused no.1.
Ld. SPP Mrs. Leena Shinde for NCB.
Coram :H.H.J The Special Judge (NDPS)
Shri. V.V. Vidwans (CR No.42).
Date : 03.12.2018.
ORAL ORDER
1.

This is an application for grant of regular bail u/s.37 of
NDPS Act, 1985 and Sec. 439 of Cr.P.C. filed on behalf of accused no.1
Lionel Raphael Silviera. Say of I.O and Ld. SPP on behalf of NCB was
called and it is submitted on record at Exh.2. Seen and considered the
say.
2.

I have heard oral submissions of Ld. Adv. Mr. Ravi Gurnani
for the accused/ applicant and Ld. SPP Mrs. Leena Shinde for the NCB.

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3.

BA 814/18 (RA 1093/18)
It is submitted on behalf of the applicant/ accused that, as
per prosecution case, accused no.1 along with co­accused Manjeet
Sharma were arrested on 3.11.2018 for allegedly committing offences
punishable u/s. 8 r/w. 20,22,28 and 29 of NDPS Act. Applicant/
accused no.1 is a young person and citizen of India, having clean
antecedents. He has recently married to Sasha.

It was a registered
marriage and ceremony is to take place on 9.12.2018 at Goa, as per
wedding invitation filed on record along with application marked as
“A”. It is further submitted that, the accused was produced before Ld.
Metropolitan Magistrate on 4.11.2018 and was remanded to NCB
custody for two days. Thereafter, he was produced before NDPS Spl.
Court and was remanded to J/C and since then, he is in J/C. As per
prosecution case, officers of NCB, Mumbai have seized 480 grams of
dark­green colour resinous substance purportedly Charas, 21 nos. of
purportedly LSD Blots (approx. weight 0.5 grams) and 0.3 grams of
white crystals purportedly MDMA. Applicant and co­accused namely
Manjeet Sharma were summoned u/s. 67 of NDPS Act and their
statements were recorded. Thereafter, they were placed under arrest.
4.

On the above factual background, Ld. Counsel for the
accused relied upon grounds stated in the application and submitted
that, accused no.1 has been falsely implicated in this case. He is not
guilty of the alleged offence. There is no compliance with the
mandatory provisions under NDPS Act. Case of the prosecution revolves
around the information received by NCB officers, seizure panchanama
and statements of accused and co­accused recorded u/s. 67 of NDPS
Act. Custodial interrogation of the accused is not necessary. The
quantity of the alleged contraband recovered from the possession of the
accused is non­commercial in nature and therefore, rigors of Sec.37 of
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BA 814/18 (RA 1093/18)
NDPS Act are not attracted and this Court has got the discretion to
grant bail to the accused. The accused is a permanent resident at the
given address and having deep roots in the society. He is ready to abide
by the conditions if any imposed by this Court. Considering the wedding
ceremony scheduled to take place on 9.12.2018, it is desirable that the
applicant be granted bail. It is well settled that, as per ruling of the
Hon’ble Apex Court, bail is a rule and jail is exception. Ld. Counsel has
also relied on the NCB Handbook and Manual.
5.

Ld Counsel for the applicant/ accused no.1 has placed
reliance on following authorities on various aspects of the matter :­
1.

Gudikanti Narsimhulu V/s. Public Prosecutor,
State of Andhra Pradesh.

2.

Sanjay Chandra
Investigation.

3.

Bhagirath Singh Judeja V/s. State of Gujarat.

4.

Dataram Singh V/s. State of Uttar Pradesh and
Anr. (Cri. Appeal No. 227 of 2018) decided on
6.2.2018 (S.C.)

V/s.

Central
Bureau
of
(From the above authorities, except authority in the case of
Dataram Singh V/s. State of Uttar Pradesh and Anr., the authorities
at Sr. Nos. 1 to 3 were only cited and relied upon, but text was not
produced).
6.

Further reliance is placed on the authorities of Hon’ble
Apex Court and Hon’ble Bombay High Court in the cases of ;
1.

Khet Singh V/s. Union of India (2002 Supreme
Court Cases (Cri) 806)
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2.

BA 814/18 (RA 1093/18)
Mr. Venkata Subramnian V/s. The State by
Intelligence officer (Crl. P. No. 4668 of 2015)
decided on 3.8.2015 (Karnataka High Court,
Bengalaru)
The above decision was confirmed by the Hon’ble Apex
Court as per order dated 14.9.2017 in Petition (s) for Special Leave to
Appeal (Crl.) No.(s) 2961/2016.

7.

1.

Dataram Singh V/s. State of Uttar Pradesh &
Anr. (Cri. Appeal No. 227 of 2018) arising out
SLP(Crl.) No. 151 of 2018) decided on 6.2.2018.

2.

Arif Khan @ Agha Khan V/s. State of
Uttarakhand (Cri. Appeal No. 273 of 2007)
decided on 27.4.2018.
I have gone through authorities and taken in to
consideration the ratio of the same.
8.

Ld. SPP Mrs. Leena Shinde has strongly opposed the
application and relied on the say filed on record at Exh.2.

She
submitted that the investigation against the accused no.1 is at
preliminary stage and there is prima facie case against the accused.
Alleged offences involved in the case are serious in nature. She resisted
the submission that the NCB officers have not followed mandatory
provisions of NDPS Act and submitted that, if the alleged offences
against the accused are proved during the trial of the case, then he is
likely to be punished for not less than 10 years and the punishment may
extend upto 20 years.
9.

So far as recovery of alleged contraband is concerned, it is
submitted by Ld. SPP that, NCB officers have recovered 480 grams of
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BA 814/18 (RA 1093/18)
dark­green colour resinous substance purportedly Charas and 0.3 grams
of white crystals purportedly MDMA, as per panchanama. Though it is
not crossing the limit of quantity treated as commercial quantity but
total recovery of 21 LSD Blots, approx. weighing 0.5 grams which falls
in the category of commercial quantity and therefore, stringent
provisions of Sec.37 of NDPS Act are attracted. It was submitted that
the accused no.1/ applicant is a qualified person, he is having degree in
Business Administrative from Australia. That is not legal and proper
ground on which leniency can be shown and bail can be granted
because NDPS Act is a stringent law. Similarly, it was submitted that,
marriage of accused no.1 has been already performed with his girl­
friend Sasha, therefore now wedding ceremony is not relevant so far as
present application is concerned. Ld. SPP submitted that, the various
authorities cited and relied upon by Ld. Counsel for the accused have
generally laid down law and present case is distinguishable on facts.
10.

Ld. SPP has submitted following authorities in supported of
her contention vide list at Exh.4 on record :­
1.

Union of India V/s. Shiv Shankar Kesari (2008
CRI L.J. 335),
2.

Union of India V/s. Rattan Mallik alias Habul
((2009) 2 Supreme Court Cases 624)
3.

Union of India V/s. Ram Samujh (Cri. Appeal
No. 866 of 1999(@ Special Leave Petition
(Criminal) No. 704 of 1999) dated 30.8.1999.

4.

N.R. Mon V/s. Mohd. Nasimuddin ((2008) 6
Supreme Court Case 721)
5.

Khet Singh V/s. Union of India (2002 Supreme
Court Cases (Cri) 806)
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6.

11.

BA 814/18 (RA 1093/18)
State of Punjab V/s. Makhan Chand (2004
Supreme Court Cases (Cri) 830)
I have gone through the above authorities and the grounds
stated in the bail application and reply filed on behalf of the NCB. I
have also taken into consideration oral submissions made by Ld.
Counsels for both sides. It can be seen that, as per prosecution case,
NCB officers had arrested accused no.1 along with co­accused
on
3.11.2018 for allegedly possessing 480 grams of dark­green colour
resinous substance purportedly Charas, 21 nos. of purportedly LSD Blots
(approx. weight 0.5 grams) and 0.3 grams of white crystals purportedly
MDMA.

The quantity of the seized contraband recovered from the
possession of the accused no.1/ applicant is not commercial quantity as
per Schedule appended with NDPS Act. Therefore, stringent provisions
of Sec.37 of the Act are not attracted. The accused is a educated and
qualified person holding business administration degree from Australia.
He is permanent resident at the given address and not likely to abscond.
Therefore, I am of the opinion that, if bail is granted to the applicant
subject to conditions, it will serve the purpose of prosecution.
12.

So far as authorities cited and relied upon by Ld Counsel
for the accused are concerned, I find that, in the case of in the case of
Khet Singh V/s. Union of India (supra), Hon’ble Apex Court has
considered importance of standing orders Nos. 1/88 of NCB with
reference to the complaint of provisions of Sec.15 and 16 of the NDPS
Act. It is held that, standing instructions have no statutory force and are
in the nature of guidelines by following fair procedure. In the authority
of Hon’ble Karnataka High Court in the case of Mr. Venkata
Subramnian V/s. The State by Intelligence officer (supra), Hon’ble
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BA 814/18 (RA 1093/18)
Karanakata High Court has observed in para 5,8to 10, 13 and 14 of the
judgment in the said case that, no tests were conducted as per Drug
Law Enforcement Field Officers Hand Book. NCB officers were having
drug detection kit but they had failed to conduct preliminary test under
NDPS Act. It was observed that, test carried out on the spot of one
sample out of the total packets of LSD would not establish that the
entire materials seized were LSD. There should be a better mechanism
to prima facie establish that the material so seized was a particular drug
and that it was of commercial quantity in order to even register a case
against the accused.
The above decision of the Hon’ble Karanataka High Court
was affirmed by the Hon’ble Apex Court.
In the case of Dataram Singh V/s. State of Uttar Pradesh
& Anr. (supra), Hon’ble Apex Court has observed that human attitude is
required to be adopted by Judge while dealing with the bail application
and remand of the accused persons.
13.

In the last authority in the case of Arif Khan @ Agha
Khan V/s. State of Uttarakhand (supra), Hon’ble Apex Court has held
that, non­compliance with mandatory provisions of Sec.50 of NDPS Act
are fatal to the prosecution even at the stage of deciding bail
application. In the said case, contraband Charas was seized from the
possession of accused by team of officials from the raiding party in
absence of any Gazetted officer and member of raiding party. The
persons carried out search and seizure were not empowered officers.
Even accused was not produced before Magistrate or Gazetted officer.
Therefore, it was held that, search and seizure was vitiated as there was
no compliance with provisions of Sec.50 of the Act and accused was
acquitted by setting aside his conviction.

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BA 814/18 (RA 1093/18)
On the other hand, the authorities submitted and relied
upon by Ld. SPP at Sr. Nos. 1 to 4 (supra), I find that the same are on
the point of effect of stringent provisions of Sec.37 of NDPS Act, effect
of non­compliance with the mandatory provisions of NDPS Act, 1985
and effect of said provisions in additing restrictions on the exercise of
powers of the trial Court to grant bail u/s. 439 of Cr.P.C. It is observed
that, as per Sec.37 of NDPS Act accused should not be released on bail
unless Court satisfies itself that there are reasonable grounds for
believing that the accused is not guilty of the offence and he is not likely
to commit offence while in bail. If bail is granted without considering
parameters of Sec.37(1)(3) of NDPS Act that would be contrary to law.
15.

Ld. SPP has also relied on the decision of the Hon’ble Apex
Court in the case of Khet Singh (supra) regarding applicability of NCB
Handbook and Manual i.e. Standing Orders 1/88 and 1/89 etc. It is
held that, those guidelines are only directory and not having any force
of law. In the case of State of Punjab V/s. Makhan Chand (supra)
Hon’ble Apex Court has held that, the accused was arrested from public
place and there were no independent witneses. It was held that, Sec.50
was not complied with.
16.

It is clear from the ratio of the above authorities that, the
authorities submitted and relied upon by Ld. Counsel for the applicant
are directly applicable to the facts of the present case and on the other
hand, the authorities submitted and relied upon by Ld. SPP are general
in nature and covering different aspects under NDPS Act, 1985,
whereas present case is distinguishable on facts. In the present case,
seizure of contraband has been effected by the team of NCB officials.

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BA 814/18 (RA 1093/18)
But, no Gazetted officer of the rank of Superintendent of NCB or above
or authorized officer was present. Therefore, there has been prima facie
non­compliance of the mandatory provisions of Sec.50 of the NDPS Act.
No field test was conducted. Under the above circumstances , I hold
that, the accused no.1/ applicant has made out a case for grant of bail.
Hence, I proceed to pass following order:­
ORDER
1.

Bail Application No.814 of 2018 is hereby allowed.

2.

Applicant/ accused no.1 Lionel Raphael Silviera
shall be released on his executing P.R.Bond of
Rs.75,000/­ (Rs. Seventy Five Thousand Only) with
one or two local sureties to the above extent.

3.

The applicant/accused no.1 to attend the I.O. at the
office of NCB Zonal Unit for the purpose of
investigation i.e. first attendance on 17th December,
2018 and thereafter from January’ 2019 once in a
fortnight on every second and fourth Monday
between 11 am to 2 pm, till filing of the charge­
sheet. If I.O is absent, then he should give
attendance to the PSO Incharge.

4.

The applicant/ accused no.1 shall not tamper with
prosecution witnesses/evidence in any manner and
co­operate in the investigation.

5.

The applicant/accused no.1 shall furnish his cell/
landline number and also of his two nearest
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BA 814/18 (RA 1093/18)
relatives or his two friends each, preferably residing
in Mumbai.
6.

The applicant/accused no.1 shall produce the proof
of his identity and proof of residence at Mumbai at
the time of executing the bail bond.

7.

The applicant/ accused no.1 shall not commit
similar offence while on bail.
In case of breach of any of the above conditions by
the
applicant/accused
no.1,
it
would
entail
cancellation of bail.
Bail
Appln.

No.814/18
stands
disposed
of
accordingly.

Date:­ 3.12.2018
Dictated on: 3.12.2018
Transcribed on: 3.12.2018.
HHJ signed on: 4.12.2018.

(V.V. Vidwans)
N.D.P.S Special Judge
City Civil & Sessions Court,
Gr. Bombay (CR 42).

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BA 814/18 (RA 1093/18)
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 3.12.2018
TIME: 3.40 pm
(NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.

Name of the judge (with Court Room No.)

Shri V.V. Vidwans, Spl. Judge & Addl. Sessions
Judge (C.R. 42)
Date of pronouncement of Judgment/ Order
3.12.2018
Judgment/ order signed by P.O on
4.12.218
Judgment/ order uploaded on
4.12.218