Mumbai – In a notable decision on December 5, 2018, the Special Judge for NDPS Cases for Greater Bombay granted regular bail to Salim Habib Khan, also known as Salim Tempo, who was arrested in connection with the alleged possession of 750 grams of Charas. The court, presided over by Special Judge V.V. Vidwans, ruled that despite the prosecution’s claims of the accused being a “habitual offender” with multiple pending cases, the non-commercial quantity of the seized contraband and previous acquittals/discharges in similar matters warranted the grant of bail.

Salim Habib Khan was apprehended by the Anti-Narcotics Cell (ANC), Kurla Unit, on November 15, 2018. According to the prosecution, PSI Bhosale and his team, while on patrolling duty searching for wanted accused and peddlers, observed Khan moving suspiciously near Plot No. 66, New Collector Compound, Malwani Mala. Upon apprehending him, they found him hiding a bag from which, after calling panchas (witnesses) and conducting a search, 750 grams of Charas was recovered. He was subsequently booked under the NDPS Act.

Defense Arguments Highlight Non-Commercial Quantity and Legal Precedent

During the bail application (NDPS Bail Application No. 855/2018), Ms. Zehera, the learned advocate for the accused, argued that the quantity of seized Charas (750 grams) falls under the non-commercial category. This is a crucial distinction as it means the stringent provisions of Section 37 of the NDPS Act, which impose strict conditions for bail, are not attracted in this case.

Ms. Zehera further contended that Khan was a permanent resident and not likely to abscond. Addressing the prosecution’s concern about his criminal antecedents, she informed the court that while the Kandivali Unit’s report indeed showed prior arrests in narcotic cases, in most of those cases, Khan had either been discharged or acquitted, with no appeals preferred by the State, except in one instance involving 1 kg 152 grams of Ganja. She emphasized that all other past cases involved non-commercial quantities, for which he was already out on bail. Therefore, she argued, merely because cases were pending or had been registered, Khan could not be treated as a “habitual offender.”

The defense specifically relied on the decision of the Hon’ble Bombay High Court in the case of Smt. Salma Suleman Shaikh V/s. The State of Maharashtra (Criminal Bail Application No. 1648/2018, decided on August 20, 2018). In that case, despite the accused having multiple similar NDPS cases, the High Court held that the mere existence of criminal antecedents was not sufficient to reject bail, particularly when the involved quantities were non-commercial and Section 37 conditions were not attracted.

Prosecution Opposes, Citing “Habitual Offender” Status

Mr. P.S. Tawade, the learned Additional Public Prosecutor for the State, vigorously opposed the bail application. He asserted that there was a prima facie case against Khan and reiterated that he was a “habitual offender” and a “drug peddler.” Mr. Tawade informed the court that four criminal cases were pending against Khan under the ANC, Kurla Unit, for possessing prohibited contraband under the NDPS Act. He argued that granting bail would likely lead to the accused repeating similar criminal offenses in the future.

Court’s Reasoning: Precedent Overrides “Habitual Offender” Tag for Non-Commercial Quantities

After considering the arguments from both sides and reviewing the case papers, Special Judge V.V. Vidwans found merit in the defense’s submission. The Court explicitly referred to the Salma Suleman Shaikh precedent, noting that “it is clear from the ratio of the said authority that, mere pendency of the criminal cases or case under NDPS Act is not sufficient circumstance to treat the accused as habitual offender.”

Given that the quantity of Charas seized in the present case was a non-commercial quantity, the Court concluded that it would be “just and proper to grant bail to the accused, subject to conditions.”

Bail Conditions Imposed

Salim Habib Khan was granted bail on the following conditions:

1. He must execute a Personal Recognizance (P.R.) Bond of Rs. 1,00,000/- (Rupees One Lakh Only) with one or two local sureties to the above extent.
2. He is required to attend the Investigating Officer (I.O.) at ANC Kandivali Unit for investigation purposes once a fortnight, specifically on the 1st and 3rd Saturday of the month, between 11:00 a.m. and 2:00 p.m., until the charge-sheet is filed. If the I.O. is absent, he must report to the Police Station Officer (PSO) Incharge.
3. He shall not tamper with prosecution witnesses or evidence in any manner and must cooperate in the investigation.
4. He must furnish his cell/landline number and those of two nearest relatives or two friends residing preferably in Mumbai.
5. He must produce proof of identity and proof of residence in Mumbai at the time of executing the bail bond.
6. Crucially, he shall not commit any similar offense while on bail.

The Court explicitly stated that any breach of these conditions would automatically lead to the cancellation of his bail.

The bail application was accordingly disposed of.