Mumbai, Maharashtra – July 24, 2025 – In a significant ruling from 2018 that continues to shape bail jurisprudence in Narcotics Drugs and Psychotropic Substances (NDPS) Act cases, a Special Judge in Greater Bombay granted bail to two individuals accused in a drug-related incident, emphasizing the principle of “non-commercial quantity” for individual seizures. The order, delivered by Shri V.V. Vidwans (CR No. 42) on November 30, 2018, in Criminal Bail Application No. 826/2018, saw Musavvar Miskil Khan (Accused No. 3) and Imran Javed Shaikh (Accused No. 5) walk free on stringent conditions.

The case, initiated by the Anti-Narcotics Cell (ANC), Ghatkopar Unit, Mumbai, under C.R. No. 53/18, involved charges under sections 8(c) read with 20 and 22 of the NDPS Act, 1985.

The Allegations: A Coordinated Drug Operation

The prosecution, represented by Ld. APP Mr. P.S. Tawade, detailed that the applicants were apprehended on November 6, 2018, as part of a meticulously planned trap. Police acted on specific information regarding alleged drug offenses. The panchanama (witnessed search document) outlined the following recoveries from six accused individuals:

• Accused No. 1: 2 kilograms 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 asserted that there was prima facie evidence of a criminal conspiracy among the accused. They vehemently opposed bail, arguing that the investigation was in its preliminary stages and that the accused were “habitual offenders” with a high likelihood of repeating similar offenses if released.

Defense Strategy: Individual Quantity and Legal Precedents

Ld. Advocate Ms. Suvidha Patil, appearing for the applicants, mounted a robust defense, primarily resting on two pivotal legal points:

1. Non-Commercial Quantity: Ms. Patil emphatically argued that the quantity of contraband seized from each individual accused was not a “commercial quantity.” This distinction is critical in NDPS cases, as it bypasses the stringent bail provisions of Section 37 of the NDPS Act, which places a high bar for bail when commercial quantities are involved. She cited the Bombay High Court’s ruling in Sangeeta Y. Gaikwad V/s. State of Maharashtra (Criminal Application No. 2597/2006, decided on August 3, 2006), which supports the consideration of individual seized quantities for bail determination.
2. “Habitual Offender” Status Challenged: Addressing the prosecution’s claim of the applicants being “habitual offenders” due to pending cases (specifically ANC C.R. No. 21/18), Ms. Patil argued that mere pendency of cases, especially those not yet finally decided, cannot automatically label an accused as a habitual offender for the purpose of denying bail. She buttressed this argument by referring to several authoritative judgments from the Hon’ble Apex Court and High Courts, including:
   • Bunty Shankarlal Chugh V/s. State of Maharashtra (Writ Petition No. 717 of 2010), where it was held that mere pendency of a preventive action case (u/s 111 Cr.P.C.) isn’t proof of habitual offending.
   • Ramrup Bhagwandas Gupta V/s. State of Maharashtra (Cr. Appln. No. 706 of 2006), where involvement in 13 pending cases was not deemed sufficient to label an accused a habitual offender as matters were still pending.
   • Binod Kumar @ Binod Kumar Bhagat V/s. The State of Bihar (Cri. Appeal No. 1383 of 2017), a Supreme Court case involving large quantities of codeine-based cough syrup, where the court considered notifications challenging the prohibited status of such drugs.
   • Virendra Tiwari V/s. The State of Madhya Pradesh (MCRC – 8210-2015), where the Madhya Pradesh High Court granted bail for Phensedyl syrup, noting its low codeine concentration fell within permissible limits.
   • Halima Sadiq Syed V/s. The State of Maharashtra (Cri. Bail Appln. No. 803 of 2014), where the Bombay High Court granted bail for 5 kgs Ganja, also a non-commercial quantity.

Furthermore, Ms. Patil invoked a Central Government Gazette Notification No. S.O. 1181(E) dated May 5, 2015, which specifies conditions under which certain codeine and ethyl morphine preparations (like the cough syrups in question) are exempted for medical and scientific use, particularly when containing not more than 100 milligrams of the drug per dosage unit and a concentration not exceeding 2.5% in undivided preparations.

Court’s Reasoning: Precedent and Proportionality

Special Judge Shri V.V. Vidwans meticulously reviewed the arguments presented by both sides. The court’s pivotal finding aligned with the defense’s position: “It is clear from the facts and circumstances of the case 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 crucial determination meant that the stringent conditions for bail under Section 37 of the NDPS Act were indeed not applicable to Musavvar Miskil Khan and Imran Javed Shaikh.

The judge acknowledged the weight of the judicial precedents cited by Ms. Patil, observing that in “similar circumstances, Hon’ble Apex Court and Hon’ble High Courts have granted bail to the accused holding that apprehension of prosecution can be taken care of by imposing suitable conditions.” The court concluded that the prosecution’s objectives would be sufficiently served by granting bail subject to stringent conditions, rather than prolonged incarceration.

Bail Granted with Stringent Conditions

Consequently, the court allowed Bail Application No. 826 of 2018, ordering the release of Musavvar Miskil Khan (Accused No. 3) and Imran Javed Shaikh (Accused No. 5) under the following terms:

• Bail Bonds: Each applicant must 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.
• Fortnightly Reporting: The applicants are mandated to report to the Investigating Officer at ANC Ghatkopar Unit once every fortnight, specifically on the 1st and 3rd Saturday of each month, between 11:00 AM and 2:00 PM, until the charge-sheet is filed. In the I.O.’s absence, attendance must be marked with the PSO Incharge.
• No Tampering: They shall not tamper with prosecution witnesses or evidence in any manner and must cooperate fully in the investigation.
• Contact Information: They are required to furnish their cell/landline numbers, along with those of two nearest relatives or friends residing in Mumbai.
• Identity and Residence Proof: Proof of identity and Mumbai residence must be submitted at the time of executing the bail bonds.
• No Further Offenses: They shall not commit any similar offense while on bail.

The court explicitly warned that any breach of these imposed conditions would lead to the immediate cancellation of their bail. The bail application was thus disposed of, underscoring the judiciary’s careful balance between the rights of the accused and the needs of investigation.