Mumbai, Maharashtra – A Special Court for Narcotic Drugs and Psychotropic Substances (NDPS) Act cases in Greater Mumbai has rejected the bail application of Nahid Ashraf Memon, 27, who was arrested in connection with the seizure of a commercial quantity of Charas.
Additional Sessions Judge K.P. Kshirsagar (C.R.43) delivered the order on January 4, 2024, in NDPS Bail Application No. 1050 of 2023. Memon was arrested by Pydhonie police station under C.R. No. 129/2023 for offenses punishable under sections 8(c) read with 20(c) and 29 of the NDPS Act, 1985.
Prosecution’s Case: A Chain of Supply
According to the prosecution, represented by Ld. APP Mr. Tarange, the case began on November 4, 2023, when co-accused Arafat Iqbal Kazi and Shahrukh Mohammad Tambu were apprehended, and a total of 1 Kg 40 grams of Charas was recovered from their possession (1 Kg 15 grams from Kazi and 25 grams from Tambu).
During the investigation, co-accused Kazi and Tambu allegedly disclosed that they had procured the contraband from co-accused Faizalali Mohamed Ali Memon. Faizalali, in turn, during his investigation, revealed that he had procured the Charas from the applicant, Nahid Ashraf Memon. Based on this chain of disclosure, Nahid Ashraf Memon was implicated.
The prosecution argued that the statement of the co-accused is admissible for the purpose of investigation, and that there is “positive material on record to indicate nexus between applicant/accused and co-accused.” They contended that a prima facie case for conspiracy (Section 29 of NDPS Act) is made out against Memon, and since a commercial quantity of contraband was recovered, the stringent conditions of Section 37 of the NDPS Act are applicable to his case. The prosecution also stated that investigation relating to Memon is still in progress and his release would hamper it.
Applicant’s Defense: No Direct Recovery
Mr. Mohit Davli, the learned advocate for Nahid Ashraf Memon, argued that this was Memon’s first bail application. He emphasized that no recovery of contraband was made directly from the applicant. He also pointed out a discrepancy in the name (Nahid vs. Naid) and residential address (Harnai vs. Chiplun).
Mr. Davli contended that there was no material on record to connect Memon with the co-accused, and that the statement of a co-accused is not admissible as evidence. He asserted that Memon has no criminal antecedents, is a resident of Harnai, Tal. Dapoli, Dist. Ratnagiri, and is willing to abide by any court conditions.
Court’s Analysis and Rejection of Bail
Judge K.P. Kshirsagar meticulously reviewed the arguments and the material on record. The court first established that the total quantity of contraband recovered in the case (1 Kg 40 grams Charas) is indeed a commercial quantity.
The judge then addressed the admissibility of the co-accused’s statement. While acknowledging that such statements may have limitations in trial, the court held that “The statement of the co-accused is admissible for the purpose of investigation.”
Crucially, the court found that “Investigation carried out till date shows the involvement of the applicant/accused and reveals the nexus between applicant/accused and co-accused. Therefore, prima facie case for offence punishable under section 8(c) r/w section 20(c) and section 29 of the NDPS Act is made out against the applicant/accused.”
The court further elaborated: “In the case of conspiracy, conduct and/or communication between the conspirators as evident from the matter on record is relevant under section 10 of the Evidence Act to prove the factum of conspiracy. Moreover, once a prima facie link is established between the applicant/accused and co-accused, onus lies on the applicant/accused to rebut the presumption under the NDPS Act. Merely because no contraband is recovered from the applicant/accused is not sufficient ground to demonstrate that, applicant/accused is not guilty of the offence for which he is alleged to have committed.”
The judge concluded that Memon had “not demonstrated any material to rebut the presumption,” leading to the prima facie applicability of Section 29 of the NDPS Act.
Addressing the bar under Section 37 of the NDPS Act, the court stated that the burden was on the applicant to show “reasonable grounds to believe that, he is not guilty of the offence” and that he “is not likely to commit similar offence.” The court found that Memon had failed to satisfy these conditions. Considering the “huge quantity of contraband” recovered and the “nature of offence,” the court was “not satisfied that, the applicant/accused will not commit the similar offence again.”
The court also noted that the investigation was not yet completed and expressed concern that Memon’s release at this stage “may tamper the prosecution evidence or influence the witnesses or may involve in commission of such offences.”
Conclusion
Based on these findings, the court held that releasing Memon at this stage would be “prejudicial to the interest of the society at large” and reiterated that “Liberal approach in grant of bail in such kind of offences under NDPS Act is also uncalled.”
Therefore, the court rejected Nahid Ashraf Memon’s bail application.