BA 809/18 (RA 1076/18)
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IN THE COURT OF SPECIAL JUDGE FOR N.D.P.S CASES FOR
GREATER BOMBAY AT MUMBAI
NDPS BAIL APPLICATION NO. 809 OF 2018
IN
NDPS R.A. NO. 1076 OF 2018
Saher Javed Ali Sayed,
R/o. B­308, SRA Sayyed CHSL,
CTS No.64, S.G. Barve Marg,
Near Dr. Bind, Kurla(W),
Mumbai 70.

..Applicant/accused no.3
V/s.
Narcotic Control Bureau
C.R. No.18/2018
..Respondents.

Appearance:­
Ld. Adv. Mr.Taraq Sayed for the applicant/ accused.
Ld. SPP Mrs. Vibhavari Pathak for NCB.
Coram :
Date :
Shri. V.V. Vidwans, H.H.J The Special Judge (NDPS)
(CR No.42).
05.12.2018.
ORAL ORDER
1.

This is an application for grant of regular bail to the
accused no.3 Saher Javed Ali Sayed u/s. 439 of Cr.P.C. Say of I.O and
Ld. SPP for NCB was called and it is submitted on record vide Exh.2.
Seen and considered the say.
2.

I have heard oral submissions of Ld. Adv. Mr. Taraq Sayed
for the accused no.3 and Ld. SPP Mrs. Pathak.

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It is submitted on behalf of the applicant/ accused that, as
per prosecution case, on 18.10.2018, officers of NCB had received a
specific information regarding transportation and delivery of substantial
quantity of Charas near Kurla Bus Depot, next to Kanakia Zillion,
Kurla(W), Mumbai to accused no. 2. The accused no.3, being daughter
of accused no.2, was reportedly accompanying by her. Accordingly, a
trap was laid and as per prosecution case, accused nos.1 to 3 were
apprehended near Kurla Bus Depot and as per panchanama, NCB
Officers had recovered 1.8 kgs Charas packed with carbon paper
wrapped in rectangular packet was kept in black and grey coloured ruck
sack bag from accused no.1 during the search. On testing the samples
recovered from the possession of accused no.1, it gave positive result for
the presence of charas.
4.

On the above factual background, Ld. Counsel for the
accused no.3 submitted that, the accused has been falsely implicated in
this case. There is no recovery from the possession of the accused no.3.
There is no compliance of the mandatory provisions of Sec.42 and 50 of
NDPS Act. It is mandatory to take down the information received into
writing and forward the same by concerned officer to his immediate
superior officer. In this case, there is no clarity and transparency
regarding compliance of Sec.42 of the Act. The accused no.3 was never
made aware about her right to be searched in presence of nearest
Magistrate or Gazetted officer. Statement of accused u/s. 67 of NDPS
Act is exculpatory and Ld. Counsel has specifically argued that, the
accused no.3 had no knowledge of the contraband in possession of
accused no.1 and was not party to any criminal conspiracy as alleged.

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It was submitted that, the accused no.3 had been to the spot to meet
accused no.1 and had nothing to do with the dealings with the
contraband. Therefore, stringent provisions of Sec.37 of NDPS Act are
not attracted. There are many irregularities and errors in the
panchanama, which are relied by the prosecution. Accused no.3 is a
law abiding and peace loving citizen and a woman who is maintaining
her family with her husband. She has been behind bar from 18.10.2018.
She is permanent resident of the given address and is not likely to
abscond. She is ready to abide by the conditions if any imposed by this
Court. Hence, this Court has discretion to grant bail to the accused
no.3. Therefore, application deserves to be allowed.
5.

Ld. SPP Mrs. Pathak has strongly opposed the application
and relied on say Exh.2. She submitted that, there is prima facie case
against accused no.3. In the raid conducted by NCB officers, 1.8 kgs
dark brown colour substance purported to be charas was recovered
from the possession of the accused no.1 and accused no.2 and 3 were
also apprehended from the spot. Statement of accused u/s. 67 of NDPS
Act has been recorded, from which role of accused can be ascertained
regarding
criminal
conspiracy
in
transportation
of
the
seized
contraband Charas. Ld. SPP denied that there is no compliance with
mandatory provisions of Sec.42 and 50 of NDPS Act and submitted that,
the information was received by Sheelbhadra Samrat, IO, NCB, Mumbai
on 17.10.2018 and he had reduced it into writing and the information
was placed before Superintendent, NCB. The said information was also
forwarded to Asst. Director, NCB.

Accused no.3 was also informed
about her legal right u/s.50 of NDPS Act by IO Anoop Kumar Gupta, but
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she had declined the offer and stated that she may be searched by a
lady officer present with the team of NCB.
6.

Ld. SPP specifically argued that, as per prosecution case
and as per information received, the accused no.1 was to deliver the
seized contraband to accused no.3, who was to travel to Doha and
accused no.2, her mother, was to assist the trip of the applicant. Flight
tickets for journey dated 18.10.2018 from Mumbai to Doha have been
recovered and return journey tickets dated 8.11.2018 from Doha to
Mumbai, room booking in ‘The Town Hotel Doha’ from 18.10.2018 to
8.11.2018 and other travel documents have been also recovered as per
panchanama from the accused, which makes clear the intention of
applicant/ accused to travel to Doha and her involvement in criminal
conspiracy with accused nos.1 and 2. The seized contraband Charas
from the possession of accused no.1 i.e. 1.8 kgs. is a commercial
quantity and therefore, stringent provisions of Sec.37 of NDPS Act are
attracted, accused no.3 being involved in the criminal conspiracy with
accused nos. 1 and 2. Investigation is still in progress and if bail is
granted to the applicant/ accused no.3, it will create hurdle in the
investigation of the case.
7.

In support of her submission, Ld. SPP has placed reliance
on the following authorities as per list at Exh.4. Seen and considered
the same ;
1.

Uday Kumar Abhevardhan V/s. The Union of India
& Anr (2012 ALL MR (Cri) 2619).

2.

Karnail Singh V/s. State of Haryana ((2009) 8
Supreme Court Cases 539.

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3.

Union of India V/s. Shiv Shankar Kesari (2008
CRI. L.J. 335)
4.

Union of India V/s. Rattan Mallik alias Habul
((2009)2 Supreme Court Cases 624)
5.

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

Hari Singh V/s. State of Himachal Pradesh (2012
CRI. L.J. 2036)
I have gone through the grounds stated in the bail
application and considered say filed by NCB. It is clear from the facts
and circumstances of the case that, the accused nos.1 to 3 were
apprehended from the spot near Kurla Bus Depot by the officers of NBC.
In view of information received, 1.8 kgs charas has been recovered from
the possession of the accused no.1. Nothing has been seized from the
possession of accused no.3. The seized quantity of contraband i.e. 1.8
kgs charas is admittedly commercial quantity and there are allegations
that, accused nos. 2 and 3 were involved in criminal conspiracy of
transporting the charas outside country as per travel documents
recovered by NCB officers from the possession of the accused.
9.

Ld Counsel for the accused no.3 has contended that, there
is non­compliance with the mandatory provisions of Sec.42 and 50 of
NDPS Act, therefore the accused is entitled to be released on bail.
Accused no.3 is a woman and though she was apprehended on the spot,
she had no knowledge about the possession of seized contraband by
accused no.1. Therefore, prima facie, there is no material to show that
she was involved in the criminal conspiracy. Ld. Adv. Mr. Taraq Sayed
for accused no.3 has specifically referred to the panchanama, copy of
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which is filed on record along with application and also requested the
Court to go through the statement of the accused no.3 recorded u/s. 67
of NDPS Act by NCB officer and submitted that, it is an exculpatory
statement and therefore, provisions of Sec.37 of NDPS Act will not be
applicable in the present case. So far authorities submitted by Ld. SPP
are concerned, Ld. Counsel for the accused submitted that the
authorities
are
on
different
law
points
and
present
case
is
distinguishable on facts.
10.

I have gone through the authorities cited and relied upon
by Ld. SPP and find that, the authority at Sr.No.1 i.e. Uday Kumar
Abhevardhan V/s. The Union of India & Anr. (supra) deals with
several important aspects relating to provisions of Sec.42,52 to 57, 67
regarding search and seizure; conscious possession of contraband and
about procedural aspects. Hon’ble Bombay High Court has held that, if
non­compliance has not caused any prejudice to the accused that will
not vitiate trial.
In the authority at Sr. No.2 Karnail Singh V/s. State of
Haryana (supra), Hon’ble Apex Court has observed that, non­
compliance with Sec.42 of NDPS Act may not vitiate trial if no prejudice
is caused to the accused. There has to be adequate and substantive
compliance with the mandatory provisions.
11.

In the authority at Sr.No.3 Union of India V/s. Shiv
Shankar Kesari (supra), Hon’ble Apex Court has considered the effect
of applicability of provisions of Sec.37 of NDPS Act. It was held that for
grant of bail to the accused on the ground that contraband was not in
exclusive possession of the accused and she was not history sheeter. No
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BA 809/18 (RA 1076/18)
reasons however indicated from the finding as to non­exclusive
possession, held that bail was liable to be cancelled.
In the authority at Sr. No.4 Union of India V/s. Rattan
Mallik alias Habul (supra), Hon’ble Apex Court has again considered
stringent provisions of Sec.37(1)(b) of NDPS Act. It is reiterated that,
apart from giving an opportunity to the Public Prosecutor to oppose bail
application as provided u/s. 37(1)(b)(i), the other twin conditions set
out in Sec.37(1)(b)(ii) have to be satisfied before grant of bail.
In the authority at Sr. No.5 i.e. N.R. Mon V/s. Mohd.
Nasimuddin (supra), Hon’ble Apex Court has again emphasized
importance of considering parameters of Sec.37 of NDPS Act before
grant of bail. If bail is granted by trial Court without considering
parameters of Sec.37, that would be invalid.
In the last authority i.e. Hari Singh V/s. State of
Himachal Pradesh (supra) Hon’ble Himachal Pradesh High Court has
considered a case of recovery of charas. No material contradictions were
found in the statements of official witnesses, therefore it was held that,
same can be relied upon even in absence of independent witness.
12.

It is true that, the ratio of above said authorities, cited and
relied upon by Ld. SPP on behalf of NCB, is regarding settled principles
of law and interpretation of the mandatory provisions of NDPS Act and
restrictions imposed on the trial Court for grant of bail as per Sec.37(1)
(b) of the Act. These authorities do not have any direct bearing on
present application, however these authorities provide necessary
guidelines while deciding the present bail application. Hence, reliance is
placed on the same.

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13.

So far as ground raised on behalf of accused no.3 in the
bail application that nothing was recovered from the possession of
accused no.3, but whether there is prima facie evidence to show that,
she was involved in the criminal conspiracy with accused nos.1 and 2 in
transportation of the seized contraband 1.8 kgs. Charas, her statement
u/s. 67 of the Act is exculpatory and that panchanama is having several
defects, copy of which is produced on record, that can be considered by
the Court after filing of the complaint. At this stage, as investigation is
at a preliminary stage and considering the fact that, accused no.1 was
found in possession of seized contraband i.e. 1.8 kgs Charas and there
are allegations regarding criminal conspiracy between accused nos. 1 to
3, I am of the opinion that, it will not be just and proper to grant bail to
the accused no.3/ applicant at this stage. Hence, I proceed to pass
following order:­
ORDER
Bail Application No.809 of 2018 stands rejected and
disposed of accordingly.

Date:­ 05.12.2018
Dictated on: 5.12.2018
Transcribed on: 5.12.2018
HHJ signed on: 6.12.2018
(V.V. Vidwans)
N.D.P.S Special Judge
City Civil & Sessions Court,
Gr. Bombay (CR 42).

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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 6.12.2018
TIME: 11.50 am
(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
5.12.18
Judgment/ order signed by P.O on
6.12.18
Judgment/ order uploaded on
6.12.18