Mumbai, Maharashtra – In a significant development, the Special Court for Narcotic Drug and Psychotropic Substances (NDPS) Act, 1985, at Gr. Bombay, has rejected the bail application of Mohd. Shahid Mohd. Anis Shaikh, a 25-year-old driver from Mankhurd. Shaikh was arrested on August 7, 2023, in connection with the seizure of 31 bottles of Chlorpheniramine Maleate & Codeine Phosphate syrup, a commercial quantity of psychotropic substance.
The bail application, NDPS BA No. 823/2023, was filed under Section 439 of the Code of Criminal Procedure. The case is registered as Spl. LAC/C.R. No. 692/2023 at Shivaji Nagar police station, Mumbai, for offenses punishable under Section 8(c) read with Section 22(c) of the NDPS Act. The order was pronounced on November 22, 2023, by Additional Sessions Judge (C.R.43) K.P. Kshirsagar.
Prosecution and Defense Arguments
Learned Advocate Mr. Kamath, representing the applicant, argued that this was the first bail application by Shaikh and no other similar application was pending in any higher court. He contended that the search of the motor scooter (bearing registration No. MH-03-EC-0395), which led to the recovery of the contraband, was vitiated because it was conducted by Police Naik Wakshe, who, according to the defense, was not authorized to conduct such a search. The defense further questioned the prosecution’s case by stating there was no material to prove Shaikh’s ownership or conscious possession of the scooter and raised doubts about PI Tamboli’s presence at the scene, citing another crime (Crime No. 688/2023) allegedly occurring simultaneously. The defense cited two previous judgments, Rakesh Hiloria @ Dhobi Vs. The State of Maharashtra and Kishore Bira Vs. State of Odisha, in support of their arguments.
Conversely, Learned APP Mr. Rajput for the prosecution strongly opposed the bail, emphasizing that a commercial quantity of contraband was recovered. He countered the defense’s argument regarding the authority of Police Naik Wakshe, stating that Wakshe had been promoted to Head Constable on January 26, 2023. Mr. Rajput cited a Maharashtra Government Notification empowering “all Police Officers of and above the rank of Head Constable” to conduct searches, thereby asserting the validity of the search. He argued that the possession of the vehicle was paramount, not its ownership, and that the stringent provisions of Section 37 of the NDPS Act were applicable due to the commercial quantity involved. The prosecution contended that Shaikh had failed to demonstrate reasonable grounds to believe he was not guilty, and that there were reasonable grounds to believe he had committed the offense.
Court’s Observations and Decision
The court, after perusing the application, documents, prosecution’s reply, and hearing arguments, noted that the alleged offense is of a grievous nature, carrying a punishment of up to 20 years imprisonment and a fine of up to One Lakh rupees. It reiterated that the rigors of Section 37 of the NDPS Act apply when commercial quantities of contraband are recovered.
Justice Kshirsagar highlighted that Section 37(2) of the NDPS Act imposes limitations on bail in addition to those under the Code of Criminal Procedure, stating that “negation of bail is rule and grant of bail is exception” under this clause. The court found no substance in the applicant’s contention that the search was conducted by an unempowered officer. It affirmed that Head Constable Wakshe, being an empowered officer as per the Maharashtra Government Notification, conducted a valid search under the direction of Police Inspector Tamboli. The court also dismissed the doubts raised about PI Tamboli’s presence, noting the explanation provided by the respondent that the other crime scene was 550 meters away with no recovery.
Ultimately, the court concluded that the applicant failed to demonstrate reasonable grounds to believe he was not guilty of the offense. On the contrary, the material on record suggested reasonable grounds to believe Shaikh had committed the offense. Considering the nature and gravity of the offense, and the recovery of a huge quantity of contraband, the court expressed its lack of satisfaction that the applicant would not commit similar offenses if released on bail.
The court further noted that the investigation was pending and that releasing the applicant at this stage could hamper the investigation, tamper with evidence, influence witnesses, or lead to further involvement in such offenses. The court emphasized that a liberal approach to bail in NDPS Act offenses is “uncalled for.”
Based on these considerations, the Special Court rejected NDPS Bail Application No. 823/2023. The application was disposed of accordingly.