Mumbai, Maharashtra – In a significant decision, the Special Court for Narcotic Drugs and Psychotropic Substances (NDPS) Cases for Greater Bombay has granted regular bail to Mohd. Oves Abdul Khalid Ansari (Accused No. 1) and Touseef Naseem Khan (Accused No. 2). The duo was arrested on November 10, 2018, by the Anti-Narcotics Cell (ANC), Ghatkopar Unit, in connection with alleged offenses under the NDPS Act.

The NDPS Bail Application No. 893/2018 was filed under Section 439 of the Code of Criminal Procedure and heard by Special Judge (NDPS) Shri V.V. Vidwans (CR No. 42). The oral order was pronounced on December 13, 2018.

According to the prosecution, on the evening of November 10, 2018, the applicants were apprehended during a search and patrolling duty aimed at finding individuals involved in the illicit sale of contraband. During the search, conducted in the presence of panch witnesses, 130 bottles of a “toxic substance phosphate contained in syrup” were recovered from the possession of Accused No. 1, and 120 bottles of codeine were recovered from Accused No. 2. Additionally, a further 1180 bottles of codeine phosphate were recovered from a taxi (bearing No. MH01 AT 2725) allegedly in the possession of both applicants. The approximate total value of the seized contraband along with the taxi was estimated at Rs. 4,86,000/-.

Ms. Shabnam Shaikh, the learned advocate for the applicants, argued that her clients had been falsely implicated. She emphasized that since the recovery had already been made, custodial interrogation was no longer necessary. Ms. Shaikh also highlighted that the accused were suffering from medical ailments and were undergoing treatment, providing supporting documents. She asserted that the applicants were permanent residents of Mumbai, ready to abide by any court-imposed conditions, and had no prior criminal antecedents, thus making them unlikely to abscond. Identity and residence proofs such as Aadhaar card, ration card, and PAN card were submitted to the court.

Mr. P.S. Tawade, the learned APP for the State, vehemently opposed the bail application. He contended that the quantity of seized contraband was substantial, indicating the applicants’ deep involvement in NDPS Act offenses. He further stated that an investigation was ongoing to uncover the source of the contraband, suggesting a wider racket. Mr. Tawade raised concerns about the applicants’ addresses in Mumbai, noting that Accused No. 1 was stated to be residing on a footpath near Hindustan Mill, which he deemed unreliable, and Accused No. 2 was residing on rent in a room of one Dashrath Narwade. He argued that if granted bail, the applicants were likely to abscond and not be available for trial.

After reviewing the remand papers and the prima facie material on record, the court acknowledged the recovery of 130 bottles from Accused No. 1, 120 bottles from Accused No. 2, and an additional 1180 bottles from the taxi, bringing the total to approximately 1430 bottles.

However, a crucial point of determination for the court was the quantity classification. The court observed that, considering the percentage of codeine phosphate in the mixture and the individual recovery from the possession of each applicant, the quantity seized was deemed to be a non-commercial quantity. This finding was significant as it rendered the stringent provisions of Section 37 of the NDPS Act inapplicable to this case. The court specifically cited the authority of the Hon’ble Bombay High Court in Sangeeta Y. Gaikwad V/s. The State of Maharashtra (Cri. Application No. 2597/2006, decided on August 3, 2006), which established that individual recovery of accused persons must be taken into account when deciding bail applications.

While acknowledging the APP’s submission that the entire quantity should be considered, the court adhered to the precedent of individual recovery for bail purposes. The court did note that the applicants did not appear to have permanent residential addresses, with Accused No. 1 residing near Hindustan Mill, Hut No. 8, Opp. Barkha High School, Mumbai, and Accused No. 2 residing on a rental basis in Vikhroli Parksite. Despite this, the court was of the opinion that allowing the application, subject to stringent conditions to ensure the applicants’ presence, would serve the prosecution’s purpose.

The court subsequently passed the following order:

1. Bail Application No. 893 of 2018 was allowed.
2. Mohd. Oves Abdul Khalid Ansari (Accused No. 1) and Touseef Naseem Khan (Accused No. 2) are to be released upon executing a Personal Recognizance (P.R.) Bond of Rs. 50,000/- (Rupees Fifty Thousand Only) each, with one or two sureties each, one of which must be a local surety.
3. The applicants/accused are required to attend the Investigating Officer (I.O.) at ANC Ghatkopar Unit for investigation once a fortnight, specifically on the 1st and 3rd Saturday of the month, between 11:00 a.m. to 2:00 p.m., until the chargesheet is filed. If the I.O. is absent, they are to report to the PSO Incharge.
4. They must not tamper with prosecution witnesses or evidence in any manner and are to co-operate in the investigation.
5. They are to furnish their cell/landline numbers and those of two nearest relatives or two friends each, preferably residing in Mumbai.
6. Proof of their identity and Mumbai residence must be produced at the time of executing the bail bonds.
7. The applicants/accused shall not commit similar offenses while on bail.

The court explicitly stated that a breach of any of these conditions would entail the cancellation of bail.

The Bail Application No. 893/18 stands disposed of accordingly. The judgment was dictated on December 13, 2018, transcribed on the same day, signed by the HHJ on December 14, 2018, and uploaded on December 17, 2018.