Mumbai, Maharashtra – On December 19, 2023, the Special Court for Narcotic Drug and Psychotropic Substances Act, 1985, at Greater Bombay, granted bail to Sohail Riyajuddin Saifi, aged 23, in NDPS Bail Application No. 987 of 2023. The case, C.R. No. 997/2023, was registered at Bandra police station, Mumbai, under Section 8(c) read with 22(b) of the NDPS Act.

Allegations and Defense’s Arguments

According to the prosecution, on July 3, 2023, during patrolling, Saifi was found in suspicious circumstances. A personal search and a search of his Suzuki Access Scooter’s boot allegedly led to the recovery of 51 grams of Mephedrone (MD). The quantity recovered is considered a commercial quantity, which ordinarily invokes the stringent provisions of Section 37 of the NDPS Act, making bail more difficult to obtain.

Mr. Giran Gogawale, the learned advocate for Saifi, argued that this was the first bail application by the accused, and no similar application had been rejected or was pending in a higher court. His primary contention revolved around a crucial procedural lapse: the search of Saifi’s person and his scooter was conducted by a Police Constable Wani, who, as per Section 42 of the NDPS Act and a Maharashtra Home Department Notification dated November 14, 1985, was not authorized to conduct such a search. The notification specifies that only “Police Officers of and above the rank of Head Constable in the State of Maharashtra are authorised to take search of the person of the accused.” Therefore, the defense argued that the search was vitiated, illegal, and in breach of Section 42(1) of the NDPS Act. This, he contended, established reasonable grounds to believe that the applicant was not guilty of the alleged offense.

Mr. Gogawale supported his arguments by relying on two relevant High Court judgments:

1. Rakesh Hiloria @ Dhobi Vs. The State of Maharashtra, in Criminal Bail Application No.362/2019, dated 13/06/2019 of Hon’ble Bombay High Court.
2. Haji Mohd. Abdul Kadar Bhumedia Vs. The State of Maharashtra, in Bail Application No.378/2022, dated 23.08.2022 of Hon’ble Bombay High Court.

He also emphasized that Saifi had no criminal antecedents and was a permanent resident of Mumbai, willing to abide by any conditions imposed by the court.

Prosecution’s Response

Mr. P.J. Rajput, the learned Additional Public Prosecutor (APP), did not dispute the fact that the search was conducted by Police Constable Wani, acknowledging the breach of Section 42(1) of the NDPS Act. However, he stressed that 51 grams of Mephedrone (MD), a commercial quantity, was recovered, thus invoking the rigours of Section 37 of the NDPS Act. He further argued that the investigation was still pending, wanted accused were yet to be arrested, and releasing Saifi could hamper the investigation and potentially lead to him committing similar offenses.

Court’s Findings and Decision

Special Judge K.P. Kshirsagar, after perusing the application, documents, prosecution’s reply, and hearing arguments, made the following observations:

• The court acknowledged that a commercial quantity of contraband (51 grams of Mephedrone) was recovered, which would typically attract Section 37 of the NDPS Act.
• Crucially, the court found no dispute regarding the factual aspect that the search of Saifi and his vehicle was carried out by Police Constable Wani, who was not authorized to do so as per the notification under Section 41(2) of the NDPS Act.
• The court stated that this procedural irregularity, being an “apparently illegal” search carried out by an unauthorized officer, vitiated the proceedings.
• The court explicitly found that Saifi “demonstrated that there appear reasonable grounds for believing that, the applicant/accused is not guilty of the offence alleged to have been committed by him” due to the illegal search. This satisfied the first condition of Section 37.
• Regarding the second condition of Section 37 (that the accused is not likely to commit a similar offense), the court noted that Saifi had no criminal antecedents or previous convictions, thus concluding there was “reason to believe that, applicant/accused is not likely to commit similar offence in future.”
• Since both conditions under Section 37 of the NDPS Act were fulfilled, the embargo placed by Section 37 was lifted.

The judge further remarked on the importance of personal liberty and the presumption of innocence. He noted that Saifi had cooperated during the investigation and expressed willingness to cooperate during the trial. The court believed that Saifi’s presence could be secured even on bail and that imposing conditions would safeguard the prosecution’s interests.

Considering the nature and gravity of the offense, the accused’s age, and antecedents, and the prima facie appreciation of the material on record, the court concluded that releasing Saifi on bail would not prejudice a fair investigation or the interest of society at large.

Order

The court allowed NDPS Bail Application No. 987/2023 and ordered the release of Sohail Riyajuddin Saifi on bail in C.R. No. 997/2023 on executing a personal bond of Rs. 50,000/- with one surety in the like amount, subject to the following conditions:

• Applicant/accused shall co-operate with the Investigating Officer and make himself available for interrogation as and when required.
• Applicant/accused shall not tamper with prosecution evidence or influence prosecution witnesses in any manner.
• Applicant/accused shall co-operate in the early disposal of the trial.
• Applicant/accused shall not commit any criminal offense while on bail.
• Applicant/accused and his surety shall provide their respective mobile numbers and present address and proof of residence at the time of executing the bail bond/surety bond.

The application was disposed of accordingly.