Mumbai, Maharashtra – A Special Judge for NDPS Cases in Greater Bombay, Shri V.V. Vidwans (CR No. 42), on November 30, 2018, granted bail to two individuals, Musavvar Miskil Khan (Accused No. 3) and Imran Javed Shaikh (Accused No. 5), who were arrested in a drug-related case by the Anti-Narcotics Cell (ANC), Ghatkopar Unit, Mumbai. The bail was granted in Criminal Bail Application No. 826/2018.
The applicants were arrested on November 6, 2018, in connection with ANC C.R. No. 53/18, for alleged offenses punishable under Sections 8(c) read with 20 and 22 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act.
Prosecution’s Case
According to the prosecution’s “say” (response to the bail application), a trap was laid based on specific information. During the search, various quantities of contraband were recovered from multiple accused:
- Accused No. 1: 2 kgs and 400 grams of Ganja
- Accused No. 2: 70 bottles of Maxcoff-T syrup
- Accused No. 3 (Applicant Musavvar Miskil Khan): 70 bottles of Maxcoff-T syrup
- Accused No. 4: 65 bottles of Maxoff-T syrup
- Accused No. 5 (Applicant Imran Javed Shaikh): 40 bottles of Rexcan new 100 ml syrup
- Accused No. 6: 60 bottles of Rexus cough syrup
The prosecution opposed the bail, stating that the investigation was at a preliminary stage and there was prima facie evidence of criminal conspiracy. They also contended that the accused were “habitual offenders” and were likely to repeat similar offenses if released on bail.
Defense Arguments
Ld. Advocate Ms. Suvidha Patil, representing the applicants, argued that the quantity of seized contraband from each individual accused was not a commercial quantity, and therefore, the stringent provisions of Section 37 of the NDPS Act (which restricts bail for commercial quantities) were not applicable. She cited the Bombay High Court authority in Sangeeta Y. Gaikwad V/s. State of Maharashtra (Criminal Application No. 2597/2006, decided on August 3, 2006) to support her argument that individual quantities should be considered separately for bail purposes.
Regarding the “habitual offender” allegation, Ms. Patil contended that merely having pending cases under the NDPS Act (like C.R. No. 21/18 mentioned by the prosecution) does not automatically categorize someone as a habitual offender, especially since these matters are yet to be finally decided. She referenced several High Court and Supreme Court decisions, including Bunty Shankarlal Chugh V/s. State of Maharashtra, Ramrup Bhagwandas Gupta V/s. State of Maharashtra, and Binod Kumar @ Binod Kumar Bhagat V/s. The State of Bihar, to argue that pending cases or preventive actions do not preclude bail, particularly when the seized quantities are below commercial limits.
Specifically concerning the cough syrups, Ms. Patil cited a Central Government Gazette Notification No. S.O. 1181(E) dated May 5, 2015, which exempts certain preparations of Methyl morphine (Codeine) and Ethyl morphine, provided they meet specific concentration and dosage unit criteria for therapeutic practice. She also referred to High Court judgments where similar cough syrups were found not to be narcotic drugs based on their low codeine concentration, falling within permissible limits under the Drugs and Cosmetics Rules, 1940.
Court’s Analysis and Decision
Special Judge V.V. Vidwans meticulously reviewed the arguments and the cited authorities. The court agreed with the defense’s primary contention that “if individual quantity of the seized contraband, which are recovered from the possession of the accused, are taken into consideration, same is non-commercial quantity.” This finding effectively rendered Section 37 of the NDPS Act inapplicable.
The judge acknowledged that the precedents cited by the defense indicated that in similar circumstances, the Apex Court and High Courts have granted bail. The court also observed that the prosecution’s apprehension could be addressed by imposing suitable stringent conditions.
Bail Granted with Conditions
Based on these considerations, the court allowed Bail Application No. 826 of 2018 and ordered the release of Musavvar Miskil Khan (Accused No. 3) and Imran Javed Shaikh (Accused No. 5) on the following terms:
- They must each execute a Personal Recognizance (P.R.) Bond of Rs. 50,000/- (Rupees Fifty Thousand Only) with one or two local sureties of the like amount.
- Reporting to ANC: They are directed to attend the Investigating Officer (I.O.) at ANC Ghatkopar Unit once a fortnight, on the 1st and 3rd Saturday of each month, between 11:00 AM and 2:00 PM, until the charge-sheet is filed. If the I.O. is absent, they must report to the Police Station Officer (PSO) in charge.
- No Tampering: They shall not tamper with prosecution witnesses or evidence in any manner and must cooperate in the investigation.
- Contact Information: They must furnish their mobile/landline numbers and those of two nearest relatives or friends (preferably residing in Mumbai).
- Identity and Residence Proof: They must produce proof of their identity and residence in Mumbai at the time of executing the bail bonds.
- No Similar Offense: They shall not commit a similar offense while on bail.
The court explicitly stated that breach of any of these conditions would entail the cancellation of bail.
The bail application stands disposed of accordingly.