IN THE SPECIAL COURT FOR GREATER BOMBAY, BOMBAY
UNDER THE N.D.P.S. ACT.
BAIL APPLICATION NO.581 OF 2018
CNR NO.: MHCC020106822018
(In crime no.152/2018 of Nagpada Police Station for offences under
section 8(c) punishable under section 21 of the NDPS Act in R.A.
No.806/2018.)
Sakina Farookh Qureshi
Aged: 50 years.
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APPLICANT
(ACCUSED)
V/s.
The State of Maharashtra through the
SHO, Nagpada Police Station, Mumbai.
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RESPONDENT
(PROSECUTION)
APPEARANCE:
Mr. Liman, Advocate for the Applicant/Accused.
Mr. P.S. Tawade, APP for the Respondent/State.
APPLICATION FOR BAIL UNDER SECTION 439 OF THE CODE OF
CRIMINAL PROCEDURE
CORAM :
SHRI S.V. YARLAGADDA
ADDITIONAL SESSIONS JUDGE
(Court Room No.54)
DATE :
4th September, 2018.
ORDER
(Dictated and pronounced in open Court)
The prosecution’s case is that on 17.08.2018, after receiving
a tipoff, during
a raid
conducted
by
the police team,
the
applicant/accused was found possessing 6 grams of gard powder, which
is a contraband substance under the NDPS (i.e. Narcotic Drugs and
Psychotropic Substances) Act. Hence, she was arrested. Therefore, this
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bail application is filed.
2.
Heard the arguments of the learned advocate for the
applicant and the learned additional public prosecutor. Perused the
case papers.
3.
There is no dispute that the quantum of 6 grams in the
present case is not a commercial quantity and therefore, the stringent
provision of section 37(1)(b) of the NDPS Act is not attracted.
However, the learned additional public prosecutor argued that the
applicant has two more cases pending in this Court against her for
similar offences. Therefore, he urged that though the case is not falling
under section 37(1)(b) of the NDPS Act, the bail should not be granted.
4.
The learned advocate for the applicant argued that there is
no proper compliance of section 42 of the NDPS Act. According to him,
this is a ground to grant bail. He cited the authorities of Miss. Henna
Bharat Shah V/s. State of Maharashtra, decided on 24.04.2017, Smt.
Salma Suleman Shaikh V/s. The State of Maharashtra, decided on
20.08.2018 and Mr. Satnarsingh Jagjitsingh Bhagi V/s. The State of
Maharashtra, decided on 11.09.1992.
5.
The learned additional public prosecutor argued that section
42 of the NDPS Act has been complied. According to him, the citations
are distinguishable on facts, especially in respect of quantity and the
number of the offences by the accused.
6.
The case papers show that the information was received at
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about 9.15 a.m. and the raid was conducted at about 1.15 p.m. Though
the raiding party started from the police station, no woman police
personnel was included in the raiding party. The case papers further
show that the police constable Wakse who received the information by
way of tipoff, participated in the raid. The same police constable Mr.
Wakse frisked the accused who is a woman and took out from the left
pocket of her kurta, the contraband powder. No explanation is given in
the case papers as to why the service of any woman police is not
availed, though there was sufficient time and why the male police
constable had to frisk the woman accused.
In case of Miss. Henna
Bharat Shah (cited supra) also, there was similar violation and the
Hon’ble High Court was pleased to grant bail. It was a violation of
express provision of section 50(4) of the NDPS Act.
Therefore, the
contention of the learned additional public prosecutor that this ratio is
not applicable, cannot be accepted.
7.
The learned advocate for the applicant raised the point of
noncompliance of section 42(1) of the NDPS Act on the ground that the
police constable who received the information, did not personally
reduce it into writing. The remand papers show that on the information
given by police constable Wakse, PSI Khondre reduced it into writing in
the station diary and informed it to the superior officers. I need not go
into those further details.
The applicant does not dispute that two
similar cases are pending against her.
But none of them are of
commercial quantity. The learned additional public prosecutor argued
that it is a modus operandi not to be involved in commercial quantity,
so as to avoid section 37(1)(b) of the NDPS Act. The applicant was
granted bail on condition of not committing similar offences. Since, she
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breached that condition, she should not be granted bail.
Thus, he
opposed the bail. However, in view of the fact that the quantity is not
commercial quantity and there is no conviction against the applicant
under the NDPS Act, bail can be granted by imposing conditions
especially for cash surety and attendance at the police station,. Hence,
the following order is passed.
FINAL ORDER
The applicant be released on PR Bond of Rs.50,000/ with one or
two solvent sureties of like amount and cash surety of Rs.25,000/
on condition that she shall not commit any offence under the NDPS
Act and in case of breach, her cash surety shall be liable to be
forfeited forthwith and her bail shall be liable to be cancelled.
The applicant shall attend Nagpada Police Station in between
10.00 a.m. to 12.00 p.m. on every Tuesday till final report is filed
in this case.
Inform the concerned PSO accordingly.
The application for bail is allowed and disposed off.
(S.V. YARLAGADDA)
Additional Sessions Judge,
Greater Bombay.
Date: 04/09/2018.
Order Dictated on
Transcribed on
Signed on
: 04/09/2018
: 05/09/2018
: 05/09/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
05/09/2018 at 5.10 p.m.
UPLOAD DATE AND TIME
BHARAT KASHINATH GAIKWAD
NAME OF STENOGRAPHER
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Name of the Judge
HHJ SHRI S.V. YARLAGADDA
(Court Room No.54)
Date of pronouncement of Order
04/09/2018
Order signed by P.O. on
05/09/2018
Order uploaded on
05/09/2018