NDPS BA No.1040/2023
..1.. in NDPS RA No.1080/2023
MHCC020178612023
Presented on
: 29-11-2023
Registered on : 29-11-2023
Decided on
: 22-12-2023
Duration
: 23 Days
IN THE SPECIAL COURT FOR NARCOTIC DRUG AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
NDPS BAIL APPLICATION NO.1040 OF 2023
IN
NDPS REMAND APPLICATION NO.1080 OF 2023
Mohammad Sohrab Ismail Khan @
Acchu
Aged : 29 years, Occ: Business,
R/at : Room No.10, Plot No.43, A line,
Road No.7, Shivaji Nagar, Govandi ,
Mumbai-400 043.

)
)
)
)
)
) .. Applicant/Accused
V/s.
The State of Maharashtra
(At the instance of Shivaji Nagar police
station, Mumbai, vide Spl. LAC/C.R.
No.140/2023).

)
)
)
) .. Respondent/Prosecutor
Appearance :
Ld. Adv. Ms. Munira Palanpurwala, for applicant/accused.
Ld. APP Mr. Rajput, for the respondent/prosecution.

NDPS BA No.1040/2023
..2.. in NDPS RA No.1080/2023
CORAM : K.P. KSHIRSAGAR
ADDL. SESSIONS JUDGE (C.R.43)
DATE
: 22/12/2023
ORAL ORDER
This is an application taken out by applicant/accused
Mohammad Sohrab Ismail Khan @ Acchu under section 439 of Code of
Criminal Procedure for enlarging him on bail in Special LAC/C.R.
No.140/2023 registered at Shivaji Nagar police station, Mumbai for the
offences punishable under section 8(c) r/w section 22(b) of Narcotic
Drug and Psychotropic Substances Act, 1985 (hereinafter referred as
“NDPS Act”).
2.

Perused the application, documents filed therewith, reply of
the prosecution and material on record. Heard, arguments advanced by
learned Advocate for applicant/accused and learned APP.
3.

Learned Advocate for applicant/accused argued that, this is
the first bail application taken out by the applicant/accused and no
other bail application of the applicant/accused is pending in any higher
Court in respect of the above Spl. LAC/C.R. No.140/2023. Ld. Advocate
for the applicant/accused argued that, as per the prosecution case on
03/02/2023, 20 gram Mephedrone (MD) was recovered from the
possession of the co-accused Mehtab Noor Mohd Iqbal Shaikh @ Totala
and during investigation he had disclosed that, one person by name
Munna had introduced him with the co-accused No.2 Jabir @ Sonu DX
and he along with said Munna and some persons were selling the
contraband for the co-accused No.2 and co-accused No.2 used to give
Rs.500/- per day to the co-accused Mehtab Noor Mohd Iqbal Shaikh @
NDPS BA No.1040/2023
..3.. in NDPS RA No.1080/2023
Totala for sale of the Mephedrone (MD). Thereafter, co-accused No.2
was arrested on 15/05/2023 and at his instance 56 gram Mephedrone
(MD) was recovered from the place shown by him. During investigation
co-accused No.2 disclosed that, the present applicant/accused is his
brother-in-law and he used to do business of sale of Mephedrone (MD)
and he used to sale and supply Mephedrone (MD) supplied to
applicant/accused. Therefore, offence punishable under section 8(c)
r/w section 22(b) and section 29 of the NDPS Act is registered against
the
applicant/accused
and
co-accused.

Ld.

Advocate
for
the
applicant/accused argued that, the applicant/accused is falsely
implicated. The applicant/accused is arrested only on the basis of the
statement of the co-accused. Statement of the co-accused is not
admissible
in
evidence.

Nothing
is
recovered
from
the
applicant/accused. There is no positive material on record to indicate
nexus of the applicant/accused with the co-accused Nos.1 and 2.
Charge-sheet is already filed against the co-accused Nos.1 and 2. The
applicant/accused is arrested on 14/08/2023. There is no positive
material on record to show conspiracy between applicant/accused and
co-accused. The applicant/accused is resident of Mumbai and ready to
abide by all terms and conditions which the court may impose.
Therefore, Ld. Advocate for the applicant/accused prayed that,
applicant/accused be released on bail.
4.

On the other hand, Ld. APP argued that, 20 gram
Mephedrone (MD) was recovered from the conscious possession of the
co-accused
No.1
on
03/02/2023
and
during
investigation
applicant/accused disclosed that, he was selling contraband for the coaccused No.2 Jabir @ Sonu DX and therefore, co-accused No.2 was
arrested on 14/05/2023 and at the instance of co-accused No.2, 56
NDPS BA No.1040/2023
..4.. in NDPS RA No.1080/2023
gram Mephedrone (MD) is recovered in the present crime. During
investigation co-accused No.2 disclosed that, the applicant/accused is
having business of selling contraband and applicant/accused is the
husband of his sister and applicant/accused used to provide
Mephedrone (MD) to him for the purpose of sale. The material on
record indicates that, there is positive evidence of conspiracy between
applicant/accused and the co-accused. Statement of the co-accused is
admissible for the purpose of investigation. Therefore, section 29 of the
NDPS Act is applicable to the case of the applicant/accused.
Commercial quantity of contraband is recovered at the instance of the
co-accused No.2. Therefore, rigours of section 37 of the NDPS Act are
applicable to the case of the applicant/accused also. Moreover, the
applicant/accused and co-accused No.2 are the relatives. Investigation
relating to the applicant/accused is in progress and it is not completed.
If the applicant/accused is released at this stage it may hamper further
investigation. Moreover, the applicant/accused failed to demonstrate
that, there are reasons to believe that, he is not guilty of the offence
alleged to be committed by him. Therefore, conditions under section 37
of the NDPS Act are also not satisfied by the applicant/accused. There
are no material infirmities in the prosecution case. Therefore, Ld. APP
submitted that, application be rejected.
5.

From
the
matter
on
record
it
appears
that,
applicant/accused is alleged to have committed offence punishable
under section 8(c) r/w section 22(b) and section 29 of NDPS Act, 1985.
The quantity of contraband recovered from the co-accused No.2 is
commercial quantity and cumulative quantity of contraband recovered
in the present crime is also commercial quantity. Therefore, prima facie
case for offence punishable under section 8(c) r/w section 22(c) and
NDPS BA No.1040/2023
..5.. in NDPS RA No.1080/2023
section 29 of the NDPS Act is made out against the applicant/accused.
From the appreciation of the material on record it reveals that, 56 gram
Mephedrone (MD) was recovered from the conscious possession of the
co-accused No.2 and co-accused No.2 during investigation revealed
that, the applicant/accused used to supply the contraband to him for
the purpose of sale. Statement of the co-accused is admissible for the
purpose of investigation. In the case of conspiracy, conduct and/or
communication between the conspirators as evident from the matter on
record is relevant under section 10 of the Evidence Act to prove the
factum of conspiracy. Moreover, once a prima facie link is established
between the applicant/accused and co-accused, onus lies on the
applicant/accused to rebut the presumption under the NDPS Act.
Merely because no contraband is recovered from the applicant/accused
is not sufficient ground to demonstrate that, applicant/accused is not
guilty of the offence for which he is alleged to have committed.
Applicant/accused has not demonstrated any material to rebut the
presumption. Therefore, from prima facie appreciation of the matter on
record section 29 of the NDPS Act appears to be applicable to the case
of the applicant/accused.
6.

As per section 37 of the NDPS Act burden is upon the
applicant/accused to show that there are reasonable grounds to believe
that, he is not guilty of the offence and to satisfy the Court that
applicant/accused
is
not
likely
to
commit
similar
offence.

Applicant/accused has not demonstrated any material to show that
there are reasonable grounds to believe that applicant/accused is not
guilty of offence alleged to have been committed by him. From the
appreciation of the material on record there are reasonable grounds to
believe that, applicant/accused has committed the offence punishable
NDPS BA No.1040/2023
..6.. in NDPS RA No.1080/2023
under section 8(c) r/w section 20(c) and section 29 of NDPS Act.
Moreover, considering the nature of offence and the matter on record
and the fact that, huge quantity of contraband was recovered from coaccused court is also not satisfied that, the applicant/accused will not
commit the similar offence again. As such conditions under section 37
of NDPS Act are not fulfilled.
7.

Admittedly, till date investigation is not completed. Prima
facie there is no material on record, so as to doubt genuineness of the
prosecution case. Prima facie there appear no inherent infirmities or
improbability in the prosecution case. Considering the nature of offence
the possibility that, after release of the applicant/accused, the
applicant/accused may tamper the prosecution evidence or influence
the witnesses or may involve in commission of such offences cannot be
ruled out at this stage. Therefore, at this stage there appear necessity
for the further detention of the applicant/accused.
8.

Considering the above facts and discussion and prima facie
appreciation of the material on record release of the applicant/accused
at this stage is likely to be prejudicial to the interest of the society at
large. Liberal approach in grant of bail in such kind of offences under
NDPS Act is also uncalled.
9.

On prima facie appreciation of the material on record and
considering the nature of the offence, gravity of the offence there
appear no justifiable grounds for releasing applicant/accused on bail at
this stage.

As such the present application is liable to be rejected.

Hence, the following order.

NDPS BA No.1040/2023
..7.. in NDPS RA No.1080/2023
ORDER
1.

NDPS BA No.1040/2023 of applicant/accused Mohammad
Sohrab Ismail Khan @ Acchu in Spl. LAC/C.R. No.140/2023 in
NDPS RA No.1080/2023, is rejected.

2.

NDPS BA No.1040/2023 is disposed of accordingly.
(Pronounced in open Court)
Date : 22/12/2023.

(K.P. Kshirsagar)
N.D.P.S Special Judge
City Civil & Sessions Court,
Gr. Bombay (CR.43)
Dictated on
:
22/12/2023
Transcribed on
:
22/12/2023
Checked on
:
22/12/2023
Signed on
:
22/12/2023
NDPS BA No.1040/2023
..8.. in NDPS RA No.1080/2023
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE
22.12.2023
TIME
NAME OF STENOGRAPHER
04.50 p.m.

Sanjay Baliram Kaskar
(Stenographer Grade-I)
Name of the Judge
H.H.J. SHRI. K.P. KSHIRSAGAR
NDPS Spl. Judge (C.R.No.43)
Date of Pronouncement of
Judgment/Order.

22/12/2023
Judgment/order signed by P.O on 22/12/2023
Judgment/order uploaded on
22/12/2023