NDPS Spl RA 1180/2018
1
BA 920/2018
IN THE SPECIAL COURT FOR NARCOTIC DRUGS AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
BAIL APPLICATION NO. 920 OF 2018
IN
NDPS REMAND APPLICATION NO. 1180 OF 2018
1.
Mohanlal Parasnath Pandey
Age – 60 yrs., Occ.: Ragpicker,
R/A Room No. 4, Bldg. No. 456,
Popat Wadi, Behind Pandey Dairy,
Kalbadevi, Mumbai.
2.
Gyanprakash Chandrashekhar Yadav
Age – 34 yrs., Occ.: Labour,
R/A Municipal House No. 143, C.D. Khemka
Chawl, Sitaram Potdar Marg, Fanaswadi,
Bhuleshwar, Mumbai.
V/s.
The State of Maharashtra
Through ANC, Azad Maidan Unit.
… Applicant/
Accused
… Respondent
Appearance :
Ld. Advocate Ms. Suvidha Patil for the applicant/accused.
Ld. APP Mr. Tawade for the State.
CORAM : H.H. THE SPECIAL JUDGE (NDPS)
SHRI U. M. MUDHOLKAR
(C.R.NO.43)
DATE : 7th JANUARY, 2019.
ORAL ORDER
This is an application for granting of a bail. The
applicants/accused Mohanlal Parasnath Pandey and Gyanprakash
Chandrashekhar Yadav were arrested in C.R. No. 62/2018, registered at
NDPS Spl RA 1180/2018
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BA 920/2018
ANC, Azad Maidan Unit, Mumbai for the alleged violation of Sec.8(c)
r/w Sec. 22(c) and 29 of the NDPS Act, 1985.
2.
The prosecution case in nutshell reveals that the officers of
respondent received an information from the reliable source about the
person possessing the contraband. Hence, the raid was arranged at the
spot given in information and it is alleged that the applicants were
found having in their possession 1800 Recrox – T bottles containing
Codeine Phosphate.
As such they came to be arrested and after
cessation of their police custody, presently they are in judicial custody.
3.
The bail is sought on the grounds that applicants/accused
are innocent and 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. The applicants
/accused are having deep roots in the society. They are ready to abide
by the conditions imposed by this Court, while releasing them on the
bail. Investigation is almost completed. For all the aforesaid reasons the
applicant are entitled to be released on bail.
On these grounds it is
prayed that applicants/ accused be enlarged on bail.
4.
The respondent/State contested the petition by filing reply
dated 04/01/2019. It is mainly contended that the Recrox – T bottles
containing codeine phosphate were found in the possession of the
applicant and that the same have been seized from their possession by
strictly following the provisions under the NDPS Act.
It is further
NDPS Spl RA 1180/2018
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BA 920/2018
contended that as per the notification dated 18/11/2009 the entire
mixture of the Narcotic Drug or Psychotropic Substance needs to be
considered, which amounts to commercial quantity in the present case.
It is further contended that on previous occasion also an offence under
NDPS Act was registered against the applicant/accused Gyanprakash
Yadav and therefore, his applications needs to be rejected. The young
generation is being addicted to the medicine which contains codeine
phosphate.
On these grounds it is prayed for the rejection of the
application.
5.
Heard Ld. Advocate Ms. Suvidha Patil for applicant & the
Ld. APP Mr. Tawade 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 Recrox – T bottles she 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 her applicants are having deep root in society and there
are no chances of their absconding, if released on bail. As such she
requested to allow the bail application.
NDPS Spl RA 1180/2018
7.
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BA 920/2018
As against this, it is submitted by the Ld. APP Shri. Tawade
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 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 their
engaging in similar nature of activity of selling contraband and there is
apprehension of their 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 Recrox
– T bottles allegedly found in the possession of the present applicants
need 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
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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
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. Tawade 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. Ms. Suvidha Patil
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 1800 Recrox – T bottles is considered then the
total quantity of Codeine Phosphate in those bottles would be 360 gm
(200 mg x 1800 = 3,60,000 mg i.e. 360 gm). As per the 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 360 gm which is noncommercial in nature. Apart from
this as per the reply filed by the ANC the quantity is noncommercial.
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 their arrest on
28/11/2018 they are 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
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evidence or otherwise. Now nothing is to be recovered or discovered on
pointing out of the applicants. The conclusion of the trial in the present
case would take sufficient long time and it is not desirable to keep the
applicants/accused behind the bars till then. There is allegation of
criminal antecedence to the discredit of the applicant no. 2, but so far
there appears to be no conviction recorded against him. Even otherwise
simply on that count his bail application cannot be rejected. To
minimise the chance of their abscondance, condition can be imposed to
produce documentary evidence regarding their permanent place of
residence. Under these circumstances, their 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. 920/2018 in NDPS Remand
Application No. 1180/2018 is hereby allowed.
2.
The applicants/accused – Mohanlal Parasnath Pandey
and Gyanprakash Chandrashekhar Yadav, in C.R. No.
62/2018, registered with Anti Narcotic Cell, Azad Maidan
Unit, Mumbai, be released on bail on each of them executing
P.R. Bond of Rs.1,00,000/ (Rupees One Lakh only), with one
or two sureties in the like amount.
3.
The applicants/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 applicants/accused shall furnish the permanent
residential address with documentary evidence such as
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BA 920/2018
AADHAR Card or Ration Card or PAN Card and cell number
of themselves.
5.
Bail Application is hereby disposed off accordingly.
07.01.2019.
(U. M. Mudholkar)
NDPS Special Judge,
Gr. Bombay.
Typed on
: 07.01.2019.
Checked on : 08.01.2019.
Signed on
: 08.01.2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME
NAME OF STENOGRAPHER
:
:
11.01.2019, 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 07.01.2019.
JUDGMENT/ORDER
P.O. on
by 08.01.2019.
signed
JUDGMENT/ORDER uploaded on
11.01.2019.