NDPS BA 1077/2023
1
MHCC020186932023
IN THE COURT OF THE SPECIAL JUDGE FOR N.D.P.S. CASES
AT GREATER MUMBAI
N.D.P.S. BAIL APPLICATION NO. 1077 OF 2023
IN
CRIME No. 54/2023
IN
RA NO.1532/2023
Nahendra Mahendra Makwana,
Age: 30 years, Occ.: Business,
R/o. Room No.1, 64 Lal Chawl,
Balu Changu Patil Marg,
Chinch Bunder, Mumbai -400009.
V/s.
State of Maharashtra
(D.C.B. CID Unit V,
vide C.R. No.54 of 2023)
… Applicant/accused no.2
… Respondent
Appearance :Ms. Munira Palanpurwala, Adv. for the applicant/accused no.2.
Mr. Shankar Erande, APP for the respondent/State.
CORAM :
H.H. THE SPECIAL JUDGE
SHRI R. R. BHAGWAT (C.R.44)
DATE :
29.12.2023
ORDER
This is an application filed by applicant/accused no.2 Nahendra Mahendra Makwana for grant of bail under Section 439 of
Code of Criminal Procedure, 1860, who was arrested on 28.11.2023
vide C.R. No.54 of 2023, registered with D.C.B. CID Unit V for offence
NDPS BA 1077/2023
2
punishable under sections 8(c) r/w 22(c) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (For short, “the NDPS Act”). Perused
bail application and say filed by the Investigating Officer through
learned A.P.P.
2.

Heard learned Counsel Ms. Munira Palanpurwala for the
applicant and learned A.P.P. Mr. Shankar Erande for the respondent/State.
3.

It is the case of prosecution that on 16.06.2023, informant
HC Milind Dinkar Nirbhavane had received specific information at
15.30 hours that accused Naresh (accused no.1) was going to arrive in
front of B.I.T. Chawl No.12,Tadwadi, Mazgaon, Byculla, Mumbai at
about 21.15 hours for selling narcotic drugs.

Said information was
reduced into writing in information register by HC Nirbhavane. Then,
copy of information was submitted to in-charge PI Nair and station
diary entry was taken regarding received information. Senior officers
were informed and written permission for raid was obtained. Raiding
material was collected. Two panchas were called to the office of
investigating agency where pre-trap panchanama was prepared. Then,
trap was laid at the said spot. Accused no.1 Naresh Jivraj Kantariya was
apprehended from the said spot and he was found in possession of 62
grams of Mephedrone kept in a transparent plastic bag during search
conducted by PI Ajit Gondhali after apprising him of his legal rights
u/s.50 of the NDPS Act. He was also having Realme 8 Pro Grey Colour
mobile handset with two sim cards. Contraband Mephedrone and the
said mobile came to be seized under panchanama. Then, offence was
registered and accused no.1 Naresh was placed under arrest. During
investigation, Accused no.1 Naresh stated that he used to purchase
contraband
from
applicant/accused
no.2
Nahendra
Mahendra
Makwana. When mobile number of accused no.1 was inspected, it came
NDPS BA 1077/2023
3
to notice that he had called the applicant on his mobile number
8104030703. When mobile phone of the applicant was technically
investigated, it was revealed that he had closed his earlier mobile
number and he started using mobile number 9076377398. As the police
team received information that accused no.2 was at New Hind Mill,
MAHADA Sankul, Ram Bhau Bhogale Marg, Ghodapdev, Mumbai, he
was arrested from the said spot on 28/11/2023. Statement of witnesses
are recorded. After completion of investigation, charge-sheet came to be
filed in the Court.
4.

The applicant is seeking bail on the grounds that no
contraband was recovered from the applicant or at his instance. The
applicant has not led to the recovery of any contraband. Save and
except statements of co-accused, there is no material to connect the
applicant with the alleged seizure. No witnesses have identified the
applicant. The applicant is arrested on the basis of statement of coaccused which is statement under sec.161 of the Cri.P.C. and it cannot
be legally admissible. The applicant is falsely implicated in this case.
Allegations made against the applicant are totally false and baseless.
The applicant is only earning member in his family and he has a family
to support. The applicant is permanent resident of Mumbai and living
with his family members and there is no apprehension that he would
abscond from justice or tampering with witnesses. The applicant
undertakes to abide by any terms and conditions imposed by the court.
He prayed for bail.
5.

Ld. Adv. Ms. Munira Palanpurwala for the applicant
submitted that total 62 gms. MD has been seized from accused no.1.
Accused no.1 revealed the name of accused no.2. Accused no.2 is
arrested on 28.11.2023 after about 5 and 1/2 months from the date of
NDPS BA 1077/2023
4
arrest of accused no.1. Nothing was recovered from accused no.2 or at
his instance. Charge-sheet having NDPS Special Case No.2202/2023 is
registered. There is no separate disclosure statement made by accused
no.1. Prosecution has not placed on record CDR details, bank
transactions and other evidence connecting accused no.2 with accused
no.1. There is no prior meeting of mind. Prosecution did not charge for
offence under sec.29 of the NDPS Act. The applicant is permanent
resident of Mumbai. She prayed for bail to the applicant.
6.

On the contrary, Ld. APP Mr. Shankar Erande for the State
submitted that
Section 50 of the NDPS Act is followed. Accused no.1
is found in possession of 62 gms. MD. Accused no.1 is in contact with
accused no.2. Commercial quantity of contraband is seized. Accused
no.2 is supplier. CDR details are available. Seized Mobile of accused
no.1 has contact number of accused no.2. Bar under sec.37 of the NDPS
Act is attracted. Offence is serious. He relied upon citation in the case
of NCB v/s. Mohit Aggarwal in Cri. Appeal Nos. 1001-1002 of 2022
decided by Hon’ble Supreme Court on 19.07.2022 and prayed for
rejection of the bail application.
7.

Considering rival submissions and material on record, it
appears that recovery of contraband made at the instance of accused
no.1 is 62 gms. MD. Said contraband falls under commercial quantity.
Accused no.2 is arrested on the basis of statement made by accused
no.1 which is not admissible in evidence as per observations in the case
of Tofan Singh v/s. State of Tamil Nadu (2021) 4 SCC 1. Prosecution
has not brought on record any other acceptable evidence which would
relate the applicant/accused no.2 with recovery of contraband made at
the instance of accused no.1. Similar aspect is dealt with by Hon’ble
Supreme Court in the case of State by (NCB) Bengaluru v/s. Pallulabid
NDPS BA 1077/2023
5
Ahmad Arimutta and Anr. Petition for Special Leave to Appeal (Cri.)
No.242 of 2022 arising out of Diary No.22702 of 2020
decided on
10.01.2022 and bail of the accused, who was found in conscious
possession of commercial quantity of psychotropic substances, was
cancelled while confirming bail orders of other accused who were
arrested on the basis of statement of co-accused.

No contraband is
seized from accused no.2 or at his instance. As material on record is not
sufficient to attract section 29 of the NDPS Act for holding accused no.2
responsible for contraband seized from accused no.1, bar u/s. 37 of the
NDPS Act is not applicable to the case of the applicant. The applicant is
resident of Mumbai. He has no criminal antecedents.

He can be
released on bail by imposing stringent conditions. Hence, I pass
following order :ORDER
1. Bail Application No. 1077/2023 is hereby allowed.
2. Applicant/accused no.2 Nahendra Mahendra Makwana in C. R.
No.54/2023 of D.C.B. CID Unit V registered under section 8(c) r/w
22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 shall
be released on his executing P. R. Bond of Rs.40,000/- (Rs. Forty
Thousand only) with one or two sureties in the like amount.
3. The applicant/accused shall attend trial regularly.
4. The applicant/accused and his sureties shall provide their respective
mobile Nos. and correct addresses of their respective residences
along with names of two relatives with their mobile Nos. and addresses.
5. The applicant/accused shall produce the proof of his identity and
proof of residence at the time of executing the bail bond.
6. The applicant/accused shall not tamper with prosecution
witnesses/evidence in any manner and co-operate in early disposal of
trial.
7. The applicant/accused shall not commit similar offence while on
bail.

NDPS BA 1077/2023
6
8. On request of Ld. Advocate for the applicant/accused, the
applicant/accused shall be released on provisional cash bail of
Rs.40,000/- for the next four weeks from the date of this order.
9. Application is disposed off accordingly.

Date : 29.12.2023
Dictated on
Transcribed on
Signed on
(R. R. BHAGWAT)
Special Judge (N.D.P.S.),
City Civil & Sessions Court,
Gr. Bombay (C.R. NO.44)
: 29.12.2023
: 01.01.2024
: 01.01.2024
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE
02.01.2024
TIME
NAME OF STENOGRAPHER
12.10 a.m.

Mrs. S. W. Tuscano
Name of the Judge
HHJ Shri R. R. Bhagwat
(CR No.44)
Date of Pronouncement of
Judgment/Order.
Judgment/order signed by P.O on
29.12.2023
Judgment/order uploaded on
02.01.2024
01.01.2024