NDPS BA 911/23
1
MHCC020155382023
IN THE COURT OF THE SPECIAL JUDGE FOR N.D.P.S. CASES
AT GREATER MUMBAI
NDPS BAIL APPLICATION NO. 911/2023
IN
C. R. NO. 65 OF 2023
Raju Shivprasad Sahani
Age : 34 years
R/at : Sultanpur, Barahgaon,
Post – Madhuban, Dist. – Mahu,
State – Uttarpradesh
V/s.
The State of Maharashtra
(DCB CID, Unit – III, Mumbai)
… Applicant/accused
… Respondent
Appearance :Mr. Kiran Gogavale, Adv. for applicant.
Mr. Shankar Erande, APP for respondent/State.
CORAM : THE SPECIAL JUDGE
B. Y. PHAD (C.R.44)
DATE :
30.01.2024
ORDER
The instant application has been filed by the accused/
applicant, arrested on 11.09.2023 seeking the grant of bail in
accordance with Section 439 of the Code of Criminal Procedure. The
application is in connection with Crime No. 65/2023, which is
registered with the DCB, CID Unit III, Mumbai under Sections 20(c), 29
and 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2.

In summary, the applicant asserts his innocence and
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maintains that his involvement in this case is a result of false
implication. It is contended that the prosecution allegedly seized two
packets wrapped with cello tape from the applicant and total weight of
the substance with packets was 1.007 Kg. Therefore, if the weight of the
packet is excluded, it will come below 1 kg. The applicant is ready to
abide by the conditions of bail bonds and furnish surety as directed by
this court. Therefore, the applicant may be released on bail.
3.

This application has been opposed by the investigating
officer through a written reply, at Exhibit 2A. It is contended that on
11.09.2023, FIR was registered against the applicant based on the
report filed by PHC Vinod Satyawam Parab. The applicant was
apprehended for possessing 1.007 kilograms of ‘charas’, with the
intention of supplying it to accused No. 2, Shiraj Patel. Following the
established procedures, the accused was arrested. During the
interrogation, accused disclosed that applicant procured the contraband
from the absconding accused, Nagendra Sahani, who hails from the
same hometown as the applicant. According to the accused’s statement,
he had previously brought and supplied ‘charas’ on two occasions to
accused No. 2, Shiraj Mashuk Patel. Furthermore, it is contended that
accused No. 2 has acknowledged receiving ‘charas’ from the applicant
for his consumption. Bail has been granted to accused No. 2, while the
absconding accused, Nagendra Savru Sahani, remains at large. It is
contended that the applicant has a criminal history, with four prior
offenses. If the applicant is granted bail, there is a substantial risk that
he may attempt to tamper with evidence, interfere with the prosecution,
or exert undue pressure on witnesses. Therefore, the application for
bail may be rejected.
4.

Learned counsel for the applicant submits that the entire
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prosecution case against the applicant is false and baseless. The
applicant has been falsely arrested in this case. The contraband
allegedly recovered from the applicant has been shown to be measured
along with its plastic cover. The total weight of the contraband
including 2 packets is shown to be 1.007 kg. Therefore, if the weight of
the plastic cover is excluded from the total weight of the contraband as
shown, the pure weight of the alleged contraband would not be one kg.
The learned counsel for the applicant has relied on the ruling of Hon’ble
Bombay High Court in Criminal Bail Application No. 291 of 2023 Imtiaz
Sattar Shaikh Vs. The State of Maharashtra decided on 01.11.2023,
wherein the contraband Mephedrone was weighed along with a plastic
bag and its weight was found 2 grams more than the commercial
quantity 50 grams. In this ruling, the Hon’ble Bombay High Court has
referred and relied on the ruling of Hon’ble Bombay High Court in
Criminal Bail Application No. 2046 of 2023 in the case of Mahesh
Netraprasad Sharma vs. the State of Maharashtra, wherein the weight
of the contraband Charas was measured along with a plastic bag and
Hon’ble Bombay High Court held that the weight of the plastic bag
ought to have been excluded as 10 gms. Learned counsel for the
applicant submits that the applicant is required to be given the benefit
of the same that the contraband has been weighed along with plastic
cover on it and the weight of the plastic cover, about 10 gram, is
required to be excluded from the total quantity of contraband as
weighed and calculated by the prosecution. Thereby, the quantity
allegedly recovered at the instance of the applicant would not be
commercial quantity. No prior case under NDPS Act has been registered
against the applicant. The applicant is ready to furnish surety and abide
by the conditions of the bail bonds. Therefore, the application may be
allowed.

NDPS BA 911/23
5.

4
Conversely, the learned APP Mr. Shri Shankar Erande for
the prosecution, posits that the offense in question is of a serious
nature, involving a substantial quantity of charas, as defined by law.
Consequently, at this stage of the proceedings, the applicant is not
eligible for release on bail. The provisions outlined in section 37 are
applicable to the circumstances of the present case. Furthermore, the
investigation has yet to be completed. Therefore, it is appropriate to
deny the bail application.
6.

Considering the submissions from both the sides, I have
carefully gone through the documents of record. The FIR clearly reveals
that the weight of 2 packets has been measured along with their
wrapper of cello tape and the total weight of the contraband is
measured as 1.007 kg. Therefore, in such circumstances, considering
the excess weight of 7 gram, which is measured along with the wrapper
of the contraband, in my opinion, the benefit of the difference of 10 gm
weight as per the ruling cited above of Hon’ble Bombay High Court is
required to be given to the applicant and if the said benefit is given to
the applicant, the weight of 10 grams is required to be excluded from
the total weight as measured by the prosecution. Thereby, the weight of
the contraband ‘charas’ would be less than one kg. in the case at hand.
Therefore, the rigors of section 37 of the Act would not be applicable to
the facts of the present case, since the quantity of the contraband falls
below the commercial quantity. Therefore, in my opinion, considering
the same and the fact that though some crimes under IPC are
registered, there is no criminal antecedent of the applicant pertaining
to any crime under the NDPS Act, it would be proper to release the
applicant on bail by putting him on stringent conditions, hence the
following order.

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ORDER
1. NDPS Bail Application no. 911/2023 is hereby allowed.
2. The applicant/accused Raju Shivprasad Sahani, arrested in Crime
No. 65/2023, shall be released on bail upon executing a personal bond
of Rs. Sixty Thousand, along with one or two solvent surety
bond/bonds of the said amount, to ensure his appearance at all
required times during the legal proceedings, subject to the following
conditions:
a. The applicant/accused is directed to report to the DCB CID Unit
III, Mumbai on first Monday of every month between 10.00 a.m.
to 11.00 a.m., till filing of the final report without fail.
b. The applicant/accused is prohibited from leaving the jurisdiction
of
Uttarpradesh
without
explicit
permission
from
the
investigating officer or the Court.
c. The applicant/accused is strictly prohibited from making any
form of contact with co-accused, witnesses, or any individuals
directly associated with the case. The applicant/accused shall not
tamper with any evidence or documents related to the case.
d. The applicant/accused must maintain a stable residence at his
current address in Madhuban, Uttar Pradesh is required to inform
the court and the investigating officer of any change in his
residential address. The accused shall furnish his active mobile
number to the Investigating Officer and shall also immediately
report any change in his mobile number.
e. The applicant/accused must not interfere with the ongoing
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investigation and shall comply fully with law enforcement in their
investigation.
f. The applicant/accused shall surrender his passport, if any, before
the Investigating Officer within a week and, if he does not possess
any passport, he shall file an affidavit to that effect before the
Investigating Officer.
g. The applicant/accused is prohibited from engaging in activities
that might be related to the offense registered.
h. The applicant/accused must comply with all reasonable directions
made by law enforcement agencies or investigating officers
related to the case.
i.

As
per
para
No.12(1)
of
the
Criminal
Manual,
the
applicant/accused before release on bail shall furnish the list of
three blood relatives with their detail residential addresses and
also the addresses of their place of work, if any, and shall also
produce documentary proofs show
ing the correctness of details produced by him.
2.

Failure to adhere to any of these conditions will result in the
immediate revocation of bail and may lead to further legal
consequences.
Date : 30.01.2024
Dictated on
Transcribed on
Checked on
Signed on
: 30.01.2024
: 31.01.2024
: 31.01.2024
: 01.02.2024
( B. Y. PHAD )
Special Judge (N.D.P.S.),
City Civil & Sessions Court,
Gr. Bombay (C.R. NO.44)
NDPS BA 911/23
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE
01.02.2024
TIME
NAME OF STENOGRAPHER
04.00 p.m.

Mrs. S. W. Tuscano
Name of the Judge
HHJ Shri B. Y. Phad
(CR No.44)
Date of Pronouncement of
Judgment/Order.
Judgment/order signed by P.O on
30.01.2024
Judgment/order uploaded on
01.02.2024
31.01.2024