NDPS BA No.987/2023
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in NDPS RA No.1060/2023
MHCC020167282023
Presented on
: 03-11-2023
Registered on : 03-11-2023
Decided on
: 19-12-2023
Duration
: 01 M, 16 Days
IN THE SPECIAL COURT FOR NARCOTIC DRUG AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
NDPS BAIL APPLICATION NO.987 OF 2023
IN
NDPS REMAND APPLICATION NO.1060 OF 2023
Sohail Riyajuddin Saifi
)
Aged : 23 years, Occ: )
R/at : Nargis Dutt Zopadpatti, Bandra, )
Mumbai.
) .. Applicant/Accused
V/s.
The State of Maharashtra
)
(At the instance of Bandra police station )
Mumbai, vide C.R. No.997/2023).
) .. Respondent/Prosecutor
Appearance :
Ld. Adv. Mr. Giran Gogawale, for the applicant/accused.
Ld. APP Mr. P.J. Rajput, for the respondent/prosecution.
CORAM : K.P. KSHIRSAGAR (C.R.43)
(ADDL. SESSIONS JUDGE)
DATE
: 19/12/2023
NDPS BA No.987/2023
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in NDPS RA No.1060/2023
ORAL ORDER
This is an application taken out by applicant/accused
Sohail Riyajuddin Saifi under section 439 of Code of Criminal
Procedure for enlarging him on bail in C.R. No.997/2023 registered at
Bandra police station, Mumbai for the offences punishable under
section 8(c) r/w 22(b) of Narcotic Drug and Psychotropic Substances
Act, 1985 (hereinafter referred as “NDPS Act”).
2.

Perused the application, documents filed therewith, reply of
the prosecution and material on record. Heard, arguments advanced by
learned Advocate for applicant/accused and learned APP.
3.

Learned Advocate for applicant/accused submitted that,
this is the first bail application taken out by the applicant/accused. No
other bail application taken out by the applicant/accused in respect of
the present crime is rejected by Hon’ble High Court and pending in
Hon’ble High Court or any superior court. Learned Advocate for
applicant/accused argued that, as per prosecution case, on 03/07/2023,
during
patrolling
applicant/accused
was
found
in
suspicious
circumstances and during his personal search and search of boot of his
Suzuki Access Scooter 51 gram Mephedrone (MD) was recovered from
the possession of the applicant/accused. Therefore, offence punishable
under section 8(c) r/w section 22(b) of NDPS Act, 1985 is registered
against the applicant/accused. From the reply and the remand papers it
is clear that, the search of the person of the applicant/accused and the
boot of the vehicle in possession of the applicant/accused was taken by
Police Constable Wani who is not authorized to take search of the
applicant/accused as per section 42 of the NDPS Act. Therefore, search
of the person of the applicant/accused and the boot of the scooter of the
NDPS BA No.987/2023
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in NDPS RA No.1060/2023
applicant/accused is vitiated. Therefore, search of the person of the
applicant/accused
and
the
vehicle
in
possession
of
the
applicant/accused is not valid and it is illegal. Therefore, there is prima
facie
breach
of
section
42(1)
of
the
NDPS
Act.

Therefore,
applicant/accused has demonstrated reasonable grounds to believe that,
he is not guilty of the offence alleged to have been committed by him.
Applicant/accused
is
not
having
any
criminal
antecedent.

Applicant/accused is permanent resident of Mumbai. Applicant/accused
is ready to abide by all conditions which the court may impose.
Therefore, Ld. Advocate for the applicant/accused prayed that,
applicant/accused be released on bail.
Ld. Advocate for the applicant/accused kept his reliance on
the following citations :
No.1
Rakesh Hiloria @ Dhobi Vs. The State of
Maharashtra, in Criminal Bail Application
No.362/2019, dated 13/06/2019 of Hon’ble
Bombay High Court.

No.2
Haji Mohd. Abdul Kadar Bhumedia Vs. The
State of Maharashtra, in Bail Application
No.378/2022, dated 23.08.2022 of Hon’ble
Bombay High Court.

Court has gone through the observations made therein.
Ld. Advocate for the applicant/accused has also relied upon
Notification of the Home Department, Mantralaya, Bombay 400 032,
dated 14th November, 1985, under the Narcotic Drugs and Psychotropic
Substances Act, 1985.
Court has gone through same.

NDPS BA No.987/2023
4.

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in NDPS RA No.1060/2023
On the other hand, Ld. APP did not dispute the fact that,
search of person of the applicant/accused and vehicle in possession of
the applicant/accused was conducted by a Police Constable Wani who is
not authorized to take the search and therefore, there is breach of
provisions of section 42(1) of the NDPS Act. However, Ld. APP aruged
that, 51 gram Mephedrone (MD) is recovered from the possession of the
applicant/accused. Therefore, rigours of section 37 of the NDPS Act are
applicable to the present case. Investigation is pending. Wanted accused
are yet to be arrested. If the applicant/accused is released at this stage
then investigation may be hampered. Applicant/accused may commit
similar offences if released on bail. Therefore, Ld. APP submitted that,
bail application be rejected.
5.

From
the
matter
on
record
it
appears
that,
the
applicant/accused is alleged to have committed offence punishable
under section 8(c) r/w 22(b) of NDPS Act, 1985.

The punishment
provided for the above offence may extend to 10 years and with fine
which may extend to Rs. One lakh only. From appreciation of material
on record it appears that, during patrolling the applicant/accused was
found in suspicious circumstances and during his personal search and
search of boot of his Suzuki Access Scooter 51 gram Mephedrone (MD)
was
recovered
from
the
possession
of
the
applicant/accused.

Admittedly, the quantity of contraband alleged to be recovered from
applicant/accused is commercial quantity. Therefore, prima facie case is
made out against applicant/accused for the offence punishable under
section 8(c) r/w section 22(c) of the NDPS Act. Therefore, rigour of
section 37 of NDPS Act is applicable in present matter.
6.

From the appreciation of the material on record it reveals
that, commercial quantity of contraband is alleged to be recovered from
NDPS BA No.987/2023
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in NDPS RA No.1060/2023
the applicant/accused . From the copy of FIR and the reply and
submission of the Ld. APP it is clear that, in the present case search of
the person of the applicant/accused and vehicle in possession of the
applicant/accused was conducted by Police Constable Wani. As per the
notification issued by the Home Department, Mantralaya, Bombay,
dated 14/11/1985, in exercise of the powers conferred by sub-section
(2) of section 41 of the NDPS Act, 1985. “All Police Officers of and
above the rank of Head Constable in the State of Maharashtra are
authorised to take search of the person of the accused” . Therefore, the
search carried out by the unauthorized officer in the present case is
apparently illegal.
7.

In the present matter there is no dispute about the factual
aspect that in the present case search of the applicant/accused and the
vehicle in possession of the applicant/accused was carried out by Police
Constable Wani who was not authorized to take search of the person of
the applicant/accused and his vehicle. Therefore, the applicant/accused
has demonstrated the reasons to show that, there are reasonable ground
to believe that, in the present case search carried out by the Police
Constable Wani of the applicant/accused and his vehicle is illegal and
invalid and it vitiates the proceeding. The judgment relied by
applicant/accused cited supra supports also the contention of
applicant/accused that, search of the applicant/accused carried by
unauthorized officer is illegal. Therefore, from the material on record
applicant/accused demonstrated that, there appear reasonable grounds
for believing that, the applicant/accused is not guilty of the offence
alleged to have been committed by him. Moreover, no criminal
antecedents
and
applicant/accused.

previous
Therefore,
conviction
there
is
are
attributed
reason
to
to
believe
the
that,
NDPS BA No.987/2023
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in NDPS RA No.1060/2023
applicant/accused is not likely to commit similar offence in future. As
such in the present case conditions under section 37 of the NDPS Act
are also fulfilled and therefore, embargo put by section 37 of the NDPS
Act is also lifted.
8.

Personal liberty is most precious of all fundamental rights.

There is presumption of innocence unless the guilt is proved.

The
object of the bail is to secure the attendance of the accused at the trial
and the object is neither punitive and preventive. From the material on
record prima facie, it appears that, applicant/accused had co-operated
during the investigation. Applicant/accused has also undertaken to cooperate during the trial. From prima facie appreciation of the material
on record, presence of the applicant/accused is likely to be secured even
if he is released on bail. Moreover, interest of the prosecution can be
safeguarded by imposing certain conditions. Therefore, considering the
above discussion and prima facie appreciation of material on record
there appear no necessity for further detention of the accused for
facilitating further full and fair investigation.
9.

Considering the nature of offence, gravity of offence age
and antecedents of the accused and from prima facie appreciation of the
material on record release of the accused on bail at this stage is not
likely to be prejudicial either to fair investigation or to the interest of
society at large. Therefore, there appear justifiable grounds for releasing
the applicant/accused on bail at the stage. As such the present
application deserves to be allowed. Hence, the following order.
ORDER
1.

NDPS Bail Application No.987/2023 in C.R. No.997/2023 in
NDPS BA No.987/2023
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in NDPS RA No.1060/2023
NDPS RA No.1060/2023, is allowed.
2.

Applicant/accused Sohail Riyajuddin Saifi, be released on bail in
C.R. No.997/2023 under section 8(c) r/w 22(b) of NDPS Act,
1985 registered by Bandra police station on executing personal
bond of Rs.50,000/- only (Rs. Fifty thousand only) with one
surety in like amount on the following conditions :
(a) Applicant/accused shall co-operate the Investigating Officer and
shall make himself available for interrogation by concern
Investigating Officer as and when required.
(b) Applicant/accused shall not tamper with prosecution evidence or
influence the prosecution witnesses in any manner.
(c) Applicant/accused shall co-operate in early disposal of the trial.
(d) Applicant/accused shall not commit any criminal offence while on the
bail.
(e) Applicant/accused and his surety shall provide their respective mobile
numbers and present address and proof of residence at the time of
execution of the bail bond/surety bond.
3.

NDPS Bail Application No.987/2023 is disposed of accordingly.
(Pronounced in open Court)
Date : 19/12/2023.

(K.P. Kshirsagar)
N.D.P.S Special Judge
City Civil & Sessions Court,
Gr. Bombay (CR.43)
Dictated on
:
19/12/2023
Transcribed on
:
19/12/2023
Checked on
:
19/12/2023
Signed on
:
20/12/2023
NDPS BA No.987/2023
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in NDPS RA No.1060/2023
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE
21.12.2023
TIME
NAME OF STENOGRAPHER
12.23 p.m.

Sanjay Baliram Kaskar
(Stenographer Grade-I)
Name of the Judge
H.H.J. SHRI. K.P. KSHIRSAGAR
(C.R.No.43) NDPS Spl. Judge
Date of Pronouncement of
Judgment/Order.

19/12/2023
Judgment/order signed by P.O
on
20/12/2023
Judgment/order uploaded on
21/12/2023