Mumbai, Maharashtra – The Special Court for Narcotic Drug and Psychotropic Substances Act, 1985, at Gr. Bombay, has rejected the bail application of Mohd. Ubed Mohd. Kayyum Khan @ Mehamood @ Mohd. Ubaid Khan, a 54-year-old resident of Govandi, Mumbai. Shaikh was arrested in connection with Spl. LAC/C.R. No. 636/2023 registered at Shivaji Nagar police station, Mumbai, for offenses punishable under Section 8(c) read with Section 22(c) and Section 29 of the NDPS Act.
The bail application, NDPS BA No. 822 of 2023, was decided by Additional Sessions Judge (C.R.43) K.P. Kshirsagar on October 30, 2023.
Arguments Presented
Learned Advocate Mr. Kamath, representing the applicant, stated that this was the first bail application filed by his client and no other similar application was pending. He argued that the prosecution’s case stemmed from the recovery of 12 bottles of Chlorpheniramine Maleate & Codeine Phosphate syrup (PHENSIREST) from co-accused No. 1, Shams Tabrej Mehboob Badshah Sayyed, on July 20, 2023. The investigation subsequently led to co-accused No. 2, Wahid Abdul Sattar Shaikh @ Gany, who allegedly procured the contraband from co-accused No. 3, Abbas Motha. It was Abbas Motha who reportedly disclosed the applicant’s name and that of other co-accused.
Mr. Kamath emphasized that nothing was recovered directly from the applicant, and he worked on daily wages. He contended that there was no positive evidence to establish a nexus between the applicant and the co-accused, and that the applicant had no prior criminal antecedents. He further argued that the stringent provisions of Section 37 of the NDPS Act were not applicable to the applicant’s case, asserting his client’s readiness to abide by any conditions imposed by the court.
Conversely, Learned APP Mr. Rajput strongly opposed the bail. He reiterated the sequence of events, highlighting that the investigation revealed a clear chain of procurement, linking the co-accused to the applicant and other wanted individuals. Mr. Rajput asserted that there was positive evidence/material on record indicating a nexus/link between the applicant and the co-accused, making Section 29 (criminal conspiracy/abetment) of the NDPS Act applicable. He stressed that the quantity of contraband recovered from co-accused No. 1 was a commercial quantity, thereby invoking the rigorous conditions of Section 37 of the NDPS Act. The APP argued that the investigation was still ongoing, and releasing the applicant at this stage could impede the process, as the applicant had not satisfied the conditions under Section 37 of the NDPS Act.
Court’s Analysis and Decision
After reviewing the application, supporting documents, the APP’s submission, and the material on record, the court acknowledged that the alleged offenses fell under Sections 8(c), 22(c), and 29 of the NDPS Act, 1985.
The court’s decision hinged significantly on two main points: the commercial quantity of contraband and the prima facie involvement and nexus of the applicant.
Justice Kshirsagar found that “prima facie there appear involvement of the applicant/accused in present crime and there appear positive material to indicate nexus between applicant/accused and co-accused and wanted accused.” This negated the applicant’s contention of a lack of connection or conspiracy, thus confirming the applicability of Section 29 of the NDPS Act to his case.
Given that the recovered quantity of contraband was deemed “commercial quantity,” the court affirmed that the “rigours of section 37 of NDPS Act are applicable.” Under Section 37, the burden lies on the applicant to demonstrate “reasonable grounds to believe that he is not guilty of offence alleged.” The court noted that the applicant failed to meet this burden. Furthermore, considering the nature of the offense and the substantial quantity of contraband recovered from the co-accused, the court was “not satisfied that the applicant/accused will not commit the similar offence again.” Therefore, the conditions under Section 37 of the NDPS Act were not fulfilled, and the statutory “embargo put by section 37 of NDPS act is not lifted.”
The court also considered that the investigation was not yet complete. It stated that “prima facie there is no material on record, so as to doubt genuineness of the prosecution case” and “no inherent infirmities or improbability in the prosecution case.” The judge expressed concern that releasing the applicant at this stage could lead to tampering with prosecution witnesses, influencing them, or further involvement in similar offenses. Such a release, in the court’s view, would “prejudice” the free, fair, and full investigation.
The court concluded that the applicant had “played active role” and was “involved in the drug peddling and having nexus with the wanted accused.” It emphasized that a “high degree of evidence is also not required to establish the conspiracy” at the bail stage.
In its final determination, the court stated that the applicant’s release at this juncture would be “prejudicial to the interest of the society at large” and reiterated that a “liberal approach in grant of bail in such kind of offences under NDPS Act is also uncalled.”
Based on these detailed considerations, the Special Court rejected NDPS Bail Application No. 822/2023, thus denying bail to Mohd. Ubed Mohd. Kayyum Khan @ Mehamood @ Mohd. Ubaid Khan. The application was disposed of accordingly.