Intro Summary

The Special Judge for NDPS Cases at Greater Mumbai, B. Y. Phad, has granted regular bail to Azhar Abdul Rahman Basha (34) in a high-profile case filed by the Narcotic Control Bureau (NCB). The order, dated April 2, 2024, is significant because it hinged on the legal classification of the seized substance. The Court accepted the defense’s argument that the 3.88 kgs of Pseudoephedrine seized falls under the category of a controlled substance (punishable under Section 25A) and not a narcotic drug or psychotropic substance. Consequently, the Court ruled that the rigorous bar on bail under Section 37 of the NDPS Act was not applicable, allowing the applicant, who is a resident of Tamil Nadu, to be released on stringent conditions.

Prosecution’s Arguments (NCB)

The NCB strongly opposed the application, detailing the conspiracy and the applicant’s alleged direct involvement.

• Seizure: 3.88 kgs of white powder, purported to be Pseudoephedrine, was seized from M/s. Aramax India Pvt. Ltd. in Andheri, Mumbai, destined for New Zealand.
• Link to Accused: The investigation connected the booking of the parcel to two persons, Javed Basha and Azhar Basha (the applicant), both residents of Chennai.
• Direct Control: The prosecution contended that the applicant and his co-accused had direct physical control over the controlled substance and that the applicant himself booked the contraband through an agent (Dheeraj Chawala), who identified him.
• Apprehensions: Since the investigation was at a preliminary stage, the NCB feared that releasing the applicant would lead to him repeating the crime, absconding, pressurizing witnesses, and tampering with evidence.

Defense’s Arguments

Ms. Zehra Charania, Ld. Advocate for the applicant, pressed two key legal arguments:

• Controlled Substance: The substance recovered (Pseudoephedrine) is a controlled substance under the NDPS Act (Regulation of Controlled Substances) Order, 2013, punishable under Section 25A, and is not a narcotic drug or psychotropic substance.
• Section 37 Inapplicable: Since the charge falls under Section 25A, the stringent bar on bail under Section 37 of the NDPS Act is not applicable.
• Limited Role: The applicant argued he was neither the sender nor the receiver of the parcel as per the consignment note, and nothing was recovered at his instance.
• Precedent: The counsel cited several rulings, including those involving the Bombay High Court (e.g., Noor Mohammed Shaikh vs. NCB), to confirm that the bar under Section 37 does not apply to crimes pertaining to Pseudoephedrine.

Court’s Analysis and Rationale (Special Judge B. Y. Phad)

The Special Judge’s decision hinged entirely on the legal classification of the seized material:

1. Exemption from Section 37: The Court explicitly concurred with the defense, noting that the contraband seized, Pseudoephedrine, falls under the category of a controlled substance. Therefore, the bar imposed by Section 37 of the NDPS Act is not applicable to the applicant’s case.
2. No Absolute Restriction: Since the most stringent restriction on bail for drug offenses was removed, the Court treated the application under the general provisions of the Cr.P.C.
3. Well-Rooted in Society: The Court found the applicant appears to be well-rooted in society (being a resident of Tamil Nadu).

Finding it proper to release the applicant, the Court imposed stringent conditions to mitigate the prosecution’s fears of absconding and tampering, especially given the inter-state nature of the case.

Bail Conditions

Azhar Abdul Rahman Basha was released on bail upon executing a personal bond of ₹60,000/- with one or two solvent sureties, subject to highly specific conditions:

• Reporting: He must report to the NCB, Mumbai Zonal Unit, every Sunday between 10:00 a.m. to 11:00 a.m., until the final report (charge-sheet) is filed.
• Travel Restriction: He is prohibited from leaving the jurisdiction of Tamilnadu without explicit permission from the investigating officer or the Court.
• Non-Interference: He is strictly prohibited from contacting co-accused, witnesses, or tampering with evidence.
• Passport: He must surrender his passport to the Investigating Officer within a week or file an affidavit stating he doesn’t possess one.

Failure to adhere to any condition will result in the immediate revocation of bail.