Mumbai, Maharashtra – A Special Court for Narcotic Drugs and Psychotropic Substances (NDPS) Act at Greater Bombay has rejected the bail application of Musanna Nasir Bawazir, 43, who was arrested in connection with the seizure of 1 Kg 05 Grams of Mephedrone (MD). The order was pronounced on December 13, 2023, by Special Judge (NDPS) Shri. A.V. Kharkar (C.R. No. 42), in Bail Application No. 979 of 2023.
Bawazir was arrested by N. M. Joshi Marg Police Station in C.R. No. 624 of 2023, along with C.R. No. 82 of 2023 of DCB, CID Unit III, for offenses punishable under Section 8(c) read with Section 22(c) of the NDPS Act. Section 22(c) pertains to offenses involving commercial quantity of psychotropic substances, which carries a minimum punishment of ten years rigorous imprisonment and a fine of at least one lakh rupees. For MD, 1 Kg 05 grams falls within the commercial quantity, which is specified as any quantity greater than 50 grams.
Prosecution’s Case
The prosecution’s case, presented by APP Ms. Geeta Nayyar, detailed that on October 15, 2023, officers of the Crime Branch, Unit III, apprehended accused No. 1, Kasim Shivani. Following mandatory NDPS Act procedures, a search of Shivani led to the recovery of 1 Kg 05 Grams of MD. During his custodial interrogation, Shivani disclosed the names of the applicant, Musanna Nasir Bawazir, and another accused, Salman. Based on this disclosure, the police subsequently arrested Bawazir. No contraband was found during the personal search of Bawazir or the search of his residence.
Defense Arguments for Bail
Advocate Mr. Ayaz Khan, representing the applicant, sought bail primarily on the ground that there was no independent material against Bawazir apart from the statement of the co-accused, Kasim Shivani. He argued that merely on the basis of a co-accused’s statement, Bawazir could not be kept incarcerated.
To support his contention, Mr. Khan relied on two rulings by the Bombay High Court: Ranjan Shaam Mawar V/s. The State of Maharashtra (Bail application No. 3880 of 2021) and Farida Nasim Shaikh @ Aapa V/s. The State of Maharashtra (Bail application No. 3018 of 2021). He highlighted that in both these precedents, even with the recovery of commercial quantity contraband from a co-accused and the presence of phone call records, bail was granted on the principle that an accused could not be held solely on the co-accused’s statement. He also presented orders from Bail applications No. 191 of 2014 and 207 of 2015, indicating that Bawazir had previously been granted bail in other NDPS cases.
Prosecution’s Opposition and Court’s Findings
The APP strongly opposed the bail application, emphasizing the substantial recovery of contraband, which is a commercial quantity. She argued that the investigation was still at a nascent stage and that the investigating officer had collected sufficient material, including Call Detail Records (CDR) and witness statements, to indicate Bawazir’s involvement in the narcotics trade. Crucially, the APP also brought to the court’s attention that Bawazir had antecedents, implying a history of involvement in drug-related offenses.
The investigating officer, present in court with the case diary, affirmed that CDR analysis showed numerous phone calls exchanged repeatedly between Bawazir and accused No. 1 (Kasim Shivani), establishing their consistent contact. Furthermore, he presented statements from independent witnesses, which, according to him, corroborated that Bawazir and Shivani were involved in supplying narcotic substances in the area.
The court carefully considered the arguments and the evidence presented. It acknowledged the defense’s reliance on the cited Bombay High Court rulings but distinguished the current case. The court noted that in the present case, in addition to the phone call records, there were statements of independent witnesses indicating Bawazir’s involvement in supplying contraband. This crucial distinction made the facts of the present case different from the precedents cited by the defense, where such independent corroboration might have been lacking.
Regarding the previous bail grants to Bawazir, the court observed that while he was released on bail in those cases, he had not been acquitted. The APP’s submission that Bawazir had breached previous bail conditions by allegedly re-engaging in the narcotics trade weighed heavily on the court’s decision.
Conclusion of the Court
Special Judge A.V. Kharkar concluded that given the high quantity of seized contraband (commercial quantity), the evidence from independent witnesses supporting the allegations against the accused, and the fact that the investigation was still in its preliminary stages, granting bail at this juncture was not warranted. The court emphasized the need for the investigating officer to have sufficient opportunity to carry out a thorough investigation.
Based on these considerations, the court passed the following order:
- Bail Application No. 979 of 2023 stands rejected.
- Bail Application No. 979 of 2023 in NDPS Remand Application No. 1354 of 2023 is disposed of.