NDPS BA No.984/2023
..1..

in NDPS RA No.1355/2023
MHCC020167312023
Presented on
: 02-11-2023
Registered on : 02-11-2023
Decided on
: 01-03-2024
Duration
: 02 M, 28 Days
IN THE SPECIAL COURT FOR NARCOTIC DRUG AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
NDPS BAIL APPLICATION NO.984 OF 2023
IN
NDPS REMAND APPLICATION NO.1355 OF 2023
Afsar Jalil Mohammed Khan @ Afsar
Jalil Ahmed Khan
Aged : 55 years, Occ: Business,
R/at : Room No. 137, Azad Nagar
Zopadpatty, Makka Madina Hotel Near,
Mahim Fata Mahim Dharavi (East),
Mumbai – 400017.

)
)
)
)
)
)
) .. Applicant/Accused
V/s.
The State of Maharashtra
(At the instance of Shivaji Nagar police
station Mumbai, vide Spl. LAC/C.R.
No.684/2023).

)
)
)
) .. Respondent/Prosecutor
Appearance :
Ld. Adv. Mr. Ajay Dubey, for the applicant/accused.
Ld. APP Mr. P.J. Tarange, for the respondent/prosecution.

NDPS BA No.984/2023
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in NDPS RA No.1355/2023
CORAM : K.P. KSHIRSAGAR (C.R.43)
(ADDL. SESSIONS JUDGE)
DATE
: 01/03/2024
ORAL ORDER
This is an application taken out by applicant/accused Afsar
Jalil Mohammed Khan @ Afsar Jalil Ahmed Khan under section 439 of
Code of Criminal Procedure for enlarging him on bail in Spl. LAC/C.R.
No.684/2023 registered at Shivaji Nagar police station, Mumbai for the
offences punishable under section 8(c) r/w 22(b) of Narcotic Drug and
Psychotropic Substances Act, 1985 (hereinafter referred as “NDPS Act”).
2.

Perused the application, documents filed therewith, reply of
the prosecution and material on record. Heard, arguments advanced by
learned Advocate for applicant/accused and learned APP.
3.

Learned Advocate for applicant/accused submitted that,
this is the first bail application taken out by the applicant/accused. No
other bail application taken out by the applicant/accused in respect of
the present crime is pending in Hon’ble High Court or rejected any
superior court. Learned Advocate for applicant/accused argued that, as
per prosecution case, on 05/08/2023, 22 gram Mephedrone (MD) is
alleged to be recovered from the possession of the co-accused No.1
Abdul Faizan Ezaz Shaikh. On the basis of the disclosure statement of
the applicant/accused 23 bottles of Codeine Phosphate & Triprolidine
Hydrochloride syrup 100 ml Similex Cough Syrup are alleged to be
recovered at the instance of the applicant/accused. Therefore, offence
punishable under section 8(c) r/w section 22(b) of NDPS Act, 1985 is
registered
against
the
applicant/accused
and
co-accused.

The
NDPS BA No.984/2023
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in NDPS RA No.1355/2023
applicant/accused has no connection with the co-accused Nos.1 and 2.
The applicant/accused is falsely implicated as he had filed various
complaint to the police commissioner. Applicant/accused is resident of
Mumbai and no criminal antecedents are attributed to him.
Applicant/accused is ready to abide by all conditions which the court
may impose. Therefore, Ld. Advocate for the applicant/accused prayed
that, applicant/accused be released on bail.
Ld. Advocate for the applicant/accused kept his reliance on
the following citation :
No.1
Iqbal Singh Vs. State, in Bail Application
No.645/2000, dated 31.07.2020 of
Hon’ble Delhi High Court.

Court has gone through the observations made therein.
4.

On the other hand, Ld. APP argued that, commercial
quantity of contraband codeine phosphate is recovered from the
possession of the applicant/accused. Investigation in respect of the
applicant/accused is pending. 22 gram Mephedrone (MD) was
recovered from the possession of the co-accused No.1 and co-accused
Nos.1 and 2 had disclosed the name of the applicant/accused. The
quantity of contraband recovered from the applicant/accused is
commercial quantity. Therefore, rigours of section 37 of the NDPS Act
are applicable. The applicant/accused has not demonstrated reasonable
grounds to believe that, he is not guilty of the offence alleged to have
been committed by him. Therefore, Ld. APP submitted that, bail
application be rejected.
5.

From
the
matter
on
record
it
appears
that,
the
applicant/accused is alleged to have committed offence punishable
NDPS BA No.984/2023
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in NDPS RA No.1355/2023
under section 8(c) r/w 22(b) of NDPS Act, 1985. Considering quantity
of contraband recovered from the possession of the applicant/accused
prima facie offence punishable under section 8(c) r/w section 22(c) is
made out against the applicant/accused. The punishment provided for
the above offence may extend to 20 years and with fine which may
extend to Rs. One lakh only. Thus, the offence alleged to have been
committed is of grievous nature and sever punishment is provided for
the same. Considering fact that commercial quantity of contraband is
recovered from the conscious possession of the applicant/accused and
nature of offences rigors of section 37 of NDPS Act are applicable to
present matter.
6.

As per section 37(2) of NDPS Act limitations on grant of
bail specified in clause (b) of sub section (1) of section 37 of NDPS Act
are in addition to the limitations under the Code of Criminal Procedure
or any other law for the time being in force on granting of bail. To check
the menance of drugs flooding the market and in order to effectively
control and eradicate menance of drug legislature has incorporated
above limitations. The above limitations are in public interest.
Therefore, for exercise of discretion for grant of bail twin conditions
under clause (b) of sub section (1) of NDPS Act must be satisfied. Detail
examination of evidence on record is not necessary while considering
the bail application. Negation of bail is rule and grant of bail is
exception under above clause.
7.

From the appreciation of the material on record it appears
that, commercial quantity of contraband codeine phosphate is recovered
at the instance of the applicant/accused. Investigation pertaining to the
applicant/accused is pending. Mere fact that, final report/complaint is
NDPS BA No.984/2023
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in NDPS RA No.1355/2023
filed against the co-accused Nos.1 and 2 who were arrested earlier does
not mean that, investigation in the present crime is already completed.
Statement of the co-accused is admissible for the purpose of
investigation. Therefore, prima facie there appear material on record to
indicate nexus between applicant/accused and co-accused. From the
appreciation of the material on record there appear no infirmities in the
prosecution case.
8.

In view of mandate of section 37 of the NDPS Act the
burden is upon the accused to show that, there are reasonable grounds
to believe that, he is not guilty of the offence alleged. However,
applicant/accused has not demonstrated any reasonable grounds to
believe that, he has not committed the offence alleged. From the
appreciation of the material on record there are reasonable grounds to
believe that, applicant/accused has committed the offence punishable
under section 8(c) r/w section 22(b) of NDPS Act. Moreover,
considering the nature of offence and the matter on record and the fact
that,
huge
quantity
of
contraband
was
recovered
from
the
applicant/accused and co-accused court is also not satisfied that, the
applicant/accused will not commit the similar offence again. As such
conditions under section 37 of NDPS Act are not fulfilled and therefore,
embargo put by section 37 of NDPS act is not lifted.
9.

Till date investigation pertaining to applicant/accused is
not completed. Prima facie there is no material on record, so as to
doubt genuineness of the prosecution case. Prima facie there appear no
inherent
infirmities
or
improbability
in
the
prosecution
case.

Considering the nature of offence possibility that, after release of the
applicant/accused, the applicant/accused may tamper the prosecution
NDPS BA No.984/2023
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in NDPS RA No.1355/2023
evidence or influence the witnesses or may involve in commission of
such offences cannot be ruled out at this stage. Therefore, at this stage
there
appear
necessity
for
the
further
detention
of
the
applicant/accused.
10.

Considering the above facts and discussion and prima facie
appreciation of the material on record release of the applicant/accused
at this stage is likely to be prejudicial to the interest of the society at
large. Liberal approach in grant of bail in such kind of offences under
NDPS Act is also uncalled.
11.

On prima facie appreciation of the material on record and
considering the nature of the offence, gravity of the offence there
appear no justifiable grounds for releasing applicant/accused on bail at
this stage.

As such the present application is liable to be rejected.

Hence, the following order.
ORDER
1.

NDPS Bail Application No.984/2023 of applicant/accused Afsar
Jalil Mohammed Khan @ Afsar Jalil Ahmed Khan in Spl.
LAC/C.R. No.684/2023, is rejected.

2.

NDPS Bail Application No.984/2023 is disposed of accordingly.
(Pronounced in open Court)
Date : 01/03/2024.

(K.P. Kshirsagar)
N.D.P.S Special Judge
City Civil & Sessions Court,
Gr. Bombay (CR.43)
Dictated on
:
01/03/2024
Transcribed on
:
01/03/2024
Checked on
:
02/03/2024
Signed on
:
04/03/2024
NDPS BA No.984/2023
..7..

in NDPS RA No.1355/2023
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE
05.03.2024
TIME
NAME OF STENOGRAPHER
12.23 p.m.

Sanjay Baliram Kaskar
(Stenographer Grade-I)
Name of the Judge
H.H.J. SHRI. K.P. KSHIRSAGAR
(C.R.No.43) NDPS Spl. Judge
Date of Pronouncement of
Judgment/Order.

01.03.2024
Judgment/order signed by P.O
on
04.03.2024
Judgment/order uploaded on
05.03.2024