NDPS RA 1222/2018
1
BA 970/2018
IN THE SPECIAL COURT FOR NARCOTIC DRUGS AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
BAIL APPLICATION NO. 970 OF 2018
IN
NDPS REMAND APPLICATION NO. 1222 OF 2018
Faizan Mohd. Faruk Sofi @ Faizan
Mohammad Farooq Sofi
Age 22 years, R/A Fн301, Krishna
Residency, Plot No. 99, E, Near Balaji
Garden, Sector 12 E, Koparkhairane,
Khernagaon, Navi Mumbai Ц 400 709.

Е Applicant
/ Accused
Vs.
The State of Maharashtra
(Through Pydhonie Police Station,
Mumbai).

Е Respondent.

Appearance:
Ld. Advocate Mr. Ganesh Patil for the applicant/ accused.
Ld. APP Mr. Panjwani for the prosecution.
CORAM: H.H.THE SPECIAL JUDGE (NDPS)
SHRI. U. M. MUDHOLKAR
(C.R.NO.43)
DATED: 1st JANUARY, 2019.
ORAL ORDER
This is an application for bail filed by applicant/accused
Faizan Mohd. Faruk Sofi @ Faizan Mohammad Farooq Sofi on account
of his arrest by the officers of Pydhonie Police Station for commission of
offences punishable u/s. 8(c) r/w 21 of NDPS Act, 1985.
2.

The prosecution case in nutshell reveals that the officers of
respondent received an information from the reliable source that the
NDPS RA 1222/2018
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BA 970/2018
present applicant is dealing with contraband called heroin and he is
about to come at the given spot for selling the same to his customers.
Hence, the raid was arranged at the spot given in the information and it
is alleged that the present applicant/accused was found having in his
possession 33 gm of heroin.

Thereafter, the applicant/accused was
placed under arrest for violation of provision of NDPS Act,1985 as
above. After cessation of his police custody, presently he is in judicial
custody.
3.

The bail is sought on the ground that applicant/accused is
falsely implicated in the crime. It is specifically contended that the
quantity of heroin allegedly seized from the possession of the present
applicant comes under the category of nonнcommercial quantity and
therefore, the bar of Section 37 of the NDPS Act does not get attracted.
He is student of Sales & Marketing degree of Tata Institute of Social
Science and is supposed to face the final examination in the month of
April Ц May, 2019 and if not released on bail, he would miss the final
degree examination causing damage to his career. There is nonн
compliance of mandatory provision contained in Section 42 of the NDPS
Act which entitles the applicant for bail. He is ready to abide by the
conditions imposed by this Court, while releasing him on the bail. On
these grounds it is prayed that applicant/ accused be enlarged on bail.

4.

The respondent/State contested the petition by filing reply
dated 01/01/2019.

It is mainly contended that the contraband has
been seized from the possession of the accused by strictly following the
provision of NDPS Act. The accused had obtained the said contraband
from a lady by name Ramjani for selling the same to a person by name
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BA 970/2018
Nasir Khot and both of them have not been able to trace out on the
given address.

Meanwhile, said Ramjani has filed anticipatory bail
application bearing No. 2189/2018 and presently interim relief has
been granted in her favour. At such a juncture, if bail is granted to the
applicant then he may threaten said Ramjani as well as wanted accused
Nasir. The investigation is in progress and not yet completed. On these
grounds it is prayed that the application be rejected.

5.

Heard Ld. Advocate Mr. Ganesh Patil for applicant & the
Ld. APP Mr. Panjwani for the State, at length.
6.

It is submitted by the Ld. Defence Counsel that the quantity
of heroin allegedly seized at the instance of applicant/accused is the
nonнcommercial quantity, as per the details reflected in the reply and
therefore, primarily the bar as contemplated u/s.37 of the NDPS Act,
does not attract. It is further contended that there is nonнcompliance of
Section 42 of the NDPS Act entitling the applicant for bail. It is also
apprehended that if not released on bail accused may loose his
educational career. As per documentary evidence, in the form of true
copy of AADHAR Card, which is placed on record, the applicant is
having permanent place of residence and therefore, he will not abscond,
if released on bail. As such he requested to release the applicant on
bail. Per contra the Ld APP Mr. Panjwani objected granting of the
application on the grounds reflected in the reply.
7.

I have carefully gone through submissions of both the sides
and record. It can be gathered from the material placed on record that
the applicant is allegedly found having in his possession 33 gm of
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BA 970/2018
heroin which is undoubtedly nonнcommercial quantity. Naturally, the
bar under section 37 of the NDPS Act does not get attracted.
8.

The copy of FIR goes to show that secret information was
received by PC D.S. Sanap and it was noted down in the station diary by
PSI Pawar, who also communicated the same to higher authorities. As
per scope of Section 42 of the NDPS Act the officer receiving the
information has to personally record the information and forward its
copy to the higher authorities, which is not at all complied in the
present matter. It is the settled position of law that the mandatory
compliance of provisions of Sections 41 to 58 of the NDPS Act can also
be looked into at the time of decision of the bail application. On this
point the judgment in the case of Lawrence D’souza V/s State of
Maharashtra reported in 1992Cr. L.J.399 can be usefully referred,
wherein it is held that
The provisions of Ss. 41 to 58 of the Act would be
applicable right from the inception of the investigation. For
that purpose,the compliance with procedural requirements
must be insisted upon and must be shown, at least, prima
facie at the stage of bail.
9.

Thus, on this sole ground the applicant would be entitled
for bail.
10.

It is equally a matter of record that since his arrest on
14/12/2018 he is in the custody and by this time the investigation in
the matter might have been almost completed, except the collection of
the CA Report from competent authority. Thereby, there is no likelihood
of tampering with the evidence or otherwise. Now nothing is to be
recovered or discovered on pointing out of the applicant. The
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BA 970/2018
conclusion of the trial in the present case would take sufficient long
time and it is not desirable to keep the applicant behind the bars till
then. Under these circumstances, his further detention in the judicial
custody appears to be unwarranted. Applicant has placed on record
verified copy of AADHAR Card which demonstrates that he has fixed
place of residence and as such there is minimal chance of his
abscondance.

There is neither allegation nor record of criminal
antecedents to the disнcredit of the applicant.

Apart from this, the
document placed on record goes to show that the applicant is a student
of Tata Institute of Social Science and if not released on bail will
certainly loose his educational career. Considering all these aspects,
liberal view needs to be adopted. The apprehension of the investigation
agency that in the event of grant of bail he may threaten wanted
accused Nasir and Ramjani, can be taken care of by issuing necessary
directions.

In view of forgoing discussion, I conclude that application
deserves to be allowed and the interest of prosecution can be secured by
imposing following stringent conditions :
ORDER
1.

Bail Application No. 970/2018 in NDPS Remand
Application No. 1222/2017 is hereby allowed.
2.

The applicant/accusedн Faizan Mohd. Faruk Sofi @
Faizan Mohammad Farooq Sofi, in C.R. No. 299/2018
registered with Pydhonie Police Station, be released on bail
on his executing P.R. Bond of Rs.1,00,000/н (Rs. One Lakh
only), with one or two sureties in the like amount.
3.

The applicant/accused shall not directly or indirectly
dissuade any of the prosecution witnesses from deposing in
the Court or tamper with the prosecution evidence in any
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way.

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So also he shall not directly or indirectly contact
wanted accused Nasir and Ramjani.
4.

Bail Application stands disposed off accordingly.

01.01.2019.

(U. M. Mudholkar)
NDPS Special Judge,
Gr. Bombay.

Typed on
: 01.01.2019.
Checked on : 01.01.2019.
Signed on
: 01.01.2019.

УCERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.Ф
UPLOAD DATE AND TIME
NAME OF STENOGRAPHER
:
:
02.01.2019, 11.30 am.
Mrs. Supriya. S. Girkar
Name of the Judge (With Court HHJ Shri. U. M. Mudholkar
Room No.)
C.R. No.43
Date
of
Pronouncement
JUDGMENT/ORDER
of 01.01.2019.

JUDGMENT/ORDER
P.O. on
by 01.01.2019.

signed
JUDGMENT/ORDER uploaded on
02.01.2019.