1
BA 855/18
IN THE COURT OF SPECIAL JUDGE FOR N.D.P.S CASES FOR
GREATER BOMBAY AT MUMBAI
NDPS BAIL APPLICATION NO.855/2018
IN
N.D.P.S. R.A. No. 1135/2018
Salim Habib Khan @ Salim Tempo
..Applicant/Accused
V/s.
The State of Maharashtra,
(at the instance of ANC,
C.R. No. 59/18)
…Respondents
Appearances:­
Ld. Advocate Ms. Zehera for applicant/accused.
Ld. APP Mr. P.S Tawade for Respondent/State.
Coram :H.H.J The Special Judge (NDPS)
Shri. V.V. Vidwans (CR No.42).
Date : 05.12.2018
ORAL ORDER
1.

This is an application for grant of regular bail u/s. 439 of
Cr.P.C filed by accused. Say of IO and Ld. APP on behalf of State was
called and it is filed on record vide Exh.2. Seen and considered the say.
2.

I have heard Ld. Adv. Ms. Zehera for the accused and Ld.

APP Mr. Tawade for the State.
3.

Ld. Counsel for the accused submitted that, as per
prosecution case, ANC, Kurla Unit has arrested the accused on
15.11.2018 while PSI Bhosale, along with staff, was on patrolling duty
searching for wanted accused and peddlers in the area. He found the
accused moving in an suspicious manner near plot no.66, New Collector
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BA 855/18
Compound, Route No.270, Last Bus Stop, Malwani Mala, Mumbai.
They had apprehended the accused. He was hiding something in his
hand. When accused was interrogated, he could no explain contents of
the bag with him.

Therefore panchas were called and search was
conducted and from his bag, 750 grams of Charas was recovered.
4.

On the above said background, Ld. Counsel for the accused
submitted that, quantity of seized contraband i.e. 750 gms of Charas is
non­commercial quantity, therefore stringent provisions of Sec.37 of
NDPS Act are not attracted in this case. The accused has been falsely
implicated in this case. The accused is permanent resident at the given
address and not likely to abscond.

Therefore, this Court has got
discretion to grant bail to the accused. Ld. Counsel for the accused
submitted that, as per say filed by Kandivali Unit, there are criminal
antecedents of the accused as the accused was earlier arrested in
narcotic cases,but in most of the cases either he has been discharged or
acquitted and no appeal has been preferred by the State against said
decision or acquittal except in one case, in which 1 kg 152 grams of
Ganja was involved. All other cases involved contraband of non­
commercial quantity and therefore, he is on bail in the said cases. Under
these circumstances, it was submitted that, merely because there are
criminal antecedents of the accused and cases are pending , the accused
cannot be treated as an habitual offender.
5.

Ld. Counsel for the accused has placed reliance on the
decision of Hon’ble Bombay High Court in the case of Smt. Salma
Suleman Shaikh V/s. The State of Maharashtra (Cr. Bail Appln.
No.1648/2018, decided on 20.8.2018). I have gone through the
above authority and I find that in paras 6 and 7, Hon’ble High Court has
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BA 855/18
considered this aspect. In that case accused was found in possession of
60 kgs Ganja and similar cases were registered against her under NDPS
Act. The accused was on bail in the case. Spl. Court had rejected bail
application on the ground that the accused had criminal antecedents,
but Hon’ble High Court has held that there is nothing on record to
indicate that the accused was involved in the case which would attract
conditions stipulated u/s.37 of the Act as the said case involved
recovery of contraband of non­commercial quantity. There was also
ground that mandatory provisions of Sec.50 of the Act were not
followed. Therefore, bail was granted.
6.

Ld. APP has opposed the application and relied on the say
and submitted that, there is prima facie case against the accused and he
is habitual offender. The accused is a drug peddler and under ANC,
Kurla Unit, four C.R s are pending for possessing prohibited contraband
under NDPS Act. If the accused is granted bail, he is likely to repeat the
criminal offence in future. Under the above circumstances, the
application is liable to be rejected.
7.

I have gone through the grounds stated in the bail
application and taken in to consideration say filed by Ld. APP for the
State. I have also gone through the authority cited and relied upon by
Ld Counsel for the accused. It is clear from the ratio of the said
authority that, mere pendency of the criminal cases or case under NDPS
Act is not sufficient circumstance to treat the accused as habitual
offender. The quantity of seized contraband in the present case is non­
commercial quantity, therefore I am of the opinion that, it will be just
and proper to grant bail to the accused, subject to conditions. Hence, I
proceed to pass following order:­
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BA 855/18
ORDER
1.

Bail Application No.855 of 2018 is hereby allowed.

2.

Applicant/ accused Salim Habib Khan @ Salim
Tempo shall be released on his executing P.R.Bond of
Rs.1,00,000/­ (Rs. One Lakh Only) with one or two
local sureties to the above extent.

3.

The applicant/accused to attend the I.O at ANC
Kandivali Unit for the purpose of investigation once
in a fortnight on 1st and third Saturday of the month
between 11.00 am to 2.00 pm till filing of the charge­
sheet. If I.O is absent, then he should give attendance
to the PSO Incharge.

4.

The applicant/ accused shall not tamper with
prosecution witnesses/evidence in any manner and
co­operate in the investigation.

5.

The applicant/ accused shall furnish his cell/ landline
number and also of his two nearest relatives or his
two friends each, preferably residing in Mumbai.

6.

The applicant/accused shall produce the proof of his
identity and proof of residence at Mumbai at the time
of executing the bail bond.

7.

The applicant/ accused shall not commit similar
offence while on bail.

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BA 855/18
In case of breach of any of the above conditions by
the
applicant/accused
no.1,
it
would
entail
cancellation of bail.
Bail
Appln.

No.855/18
stands
disposed
of
accordingly.

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

“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 7.12.2018
TIME: 10.46 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
5.12.2018
Judgment/ order signed by P.O on
6.12.2018
Judgment/ order uploaded on
7.12.2018
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BA 855/18
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : …………..
TIME: …………

(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
………….

Judgment/ order signed by P.O on
……………

Judgment/ order uploaded on
…………..