NDPS BA No.973/2023 ..1.. in Spl. Case No.1763/2023 MHCC020164262023
Presented on : 31-10-2023 Registered on : 31-10-2023 Decided on : 18-01-2024
Duration : 02 M, 18 Days

IN THE SPECIAL COURT FOR NARCOTIC DRUG AND PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY NDPS BAIL APPLICATION NO.973 OF 2023 IN SPECIAL CASE NO.1763 OF 2023

Akbarali Anwarali Shaikh Aged : 33 years, Occ: R/at : Room No.204, Building No.16,
New Arena Park, MHADA Colony, RCF,
Chembur, Mumbai. ) .. Applicant/Accused No.2

V/s.

The State of Maharashtra )
(Through ANC Bandra Unit, Mumbai, ) vide C.R. No.31/2023).
) .. Respondent/Prosecutor

Appearance :
Ld. Adv. Mr. Sharif Shaikh, for applicant/accused.
Ld. APP Mr. Rajput, for the respondent/prosecution.
CORAM : K.P. KSHIRSAGAR
ADDL. SESSIONS JUDGE (C.R.43) DATE 18/01/2024

ORAL ORDER

This is an application taken out by applicant/accused No.2 Akbarali Anwarali Shaikh under section 439 of Code of Criminal Procedure for enlarging him on bail in C.R. No.31/2023 (now Special Case No.1763/2023) registered at ANC Bandra Unit, Mumbai for the offences punishable under section 8(c) r/w section 22(c) and section 29 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 the record of Special Case No.1763/2023. Heard, arguments advanced by learned Advocate for applicant/accused and
learned APP.

3.Learned Advocate for applicant/accused No.2 argued that, this is the first bail application taken out by the applicant/accused after filing of charge-sheet/final report and no other bail application of the
applicant/accused is pending in any higher Court in respect of the above crime or rejected by any Higher court. As per prosecution case, on 19/04/2022, during patrolling 150 gram Mephedrone (MD) was recovered from the possession of the co-accused No.1 Kurban Shamshud Shaikh and 20 gram Mephedrone (MD) was recovered from the possession of the applicant/accused No.2. During investigation coaccused Nos.1 and applicant/accused disclosed that, they were purchasing and selling the contraband with the help of the co-accused No.3. Therefore, offence punishable under section 8(c) r/w section 22(c) and section 29 of NDPS Act is registered against the applicant/accused. The applicant/accused is falsely implicated in the present case. The quantity of contraband recovered from the applicant/accused is of intermediate quantity. Therefore rigours of section 37 of the NDPS Act are not applicable. There is non-compliance of provision of section 50 of the NDPS Act. Chemical analyzers report reveals that result of samples recovered from the applicant/accused and the co-accused was negative for Mephedrone (MD) and the contraband detected is Methamphetamine. it creates doubt about the prosecution case. There is no positive material on record to indicate nexus between applicant/accused and co-accused No.1. There is no positive material on record to connect the applicant/accused with the co-accused No.1. Investigation is already completed and final report bearing Special Case No.1763/2023 is already filed. The applicant/accused is ready to abide by all terms and conditions which the court may impose. Therefore, Ld. Advocate for the applicant/accused prayed that, applicant/accused be released on bail.

4.On the other hand, Ld. APP argued that, 150 gram Mephedrone (MD) was recovered from the possession of the co-accused No.1 and 20 gram Mephedrone (MD) was recovered from the
possession of the applicant/accused No.2. Cumulative quantity of contraband recovered in the present case is commercial quantity. Therefore, rigours of section 37 of the NDPS Act are applicable. The
examination report of Regional Forensic Science Laboratory reveals that, Methamphetamine is detected in the sample recovered from the co-accused Nos.1 and 2. purview of Methamphetamine is also falls within the NDPS Act.

The CDR on record reveals that, applicant/accused and co-accused Nos.1 and 3 were in contact with
each other. CDR shows the live link/nexus between applicant/accused and the co-accused No.1. Therefore there is positive material on record to indicate nexus between applicant/accused and the co-accused and involvement of the applicant/accused in the present crime there is positive material of conspiracy. Therefore, section 29 of the NDPS Act is applicable to the case of the applicant/accused. Opportunity to prove the nexus between applicant/accused and the co-accused No.1 and other co-accused also needs to be given to the prosecution for proving conspiracy. Applicant/accused has failed to demonstrate that, there are reasonable grounds to believe that, he is not guilty of the offence alleged to be committed by him. On the other hand, from the appreciation of the material on record it reveals that, there are reasonable grounds to believe that, the applicant/accused has committed offence alleged to have been committed by him. Mere fact that, substance detected in the sample recovered from the possession of the applicant/accused is Methamphetamine and as Methamphetamine comes within the purview of NDPS Act it does not create in the infirmity in the prosecution case. Therefore, Ld. APP submitted that, application be rejected.

5.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.

6.From the matter on record it appears that, applicant/accused is alleged to have been committed offence punishable under section 8(c) r/w section 22(c) and section 29 of NDPS Act, 1985.
From the examination report of Regional Forensic Science Laboratory it is clear that, Methamphetamine is detected from the substance recovered from the possession of the applicant/accused and the coaccused No.1. Methamphetamine also comes within the purview of
Narcotics Drugs and Psychotropic Substance within the purview of NDPS Act. The quantity of contraband recovered from the possession of the co-accused No.1 is commercial quantity. The individual quantity of the contraband recovered from the applicant/accused is intermediate
quantity. However, from prima facie appreciation of the material on record it appears that, both the accused were found together and the material on record like CDR at page number 121, 122 and 123 and
onward in the final report reveals that, applicant/accused and coaccused No.1 and 3 were in contact with each other on mobile. CDR of the mobile of the applicant/accused prima facie reveals connection
between applicant/accused with co-accused. From the appreciation of the material on record prima facie involvement of the applicant/accused in the present crime is disclosed. Therefore, from appreciation of the material on record there appear positive material on record to indicate nexus between applicant/accused and the co-accused Nos.1 and 3 in the present case. CDR of the mobile used by the applicant/accused and coaccused available on record indicate live link between applicant/accused and co-accused. Court can take judicial note of the judgment in the case of Manik Das @ Manik Chandra Das Vs. The Narcotics Control Bureau, in C.R.M. No.6135/2021, dated 28/01/2022
of Hon’ble Calcutta High Court wherein the Hon’ble Calcutta High Court observed that, “in case of a conspiracy, conduct and/or communication between the conspirators as evident from call detail
records are relevant under section 10 of the Evidence Act to prove the factum of conspiracy. Moreover, once a prima facie link is established between the applicant/accused and co-accused, the onus lies on the applicant to rebut the presumption under the NDPS Act” . From the prima facie appreciation of the material on record there appear positive material to indicate nexus between applicant/accused and the other coaccused.

7.As per section 37 of the NDPS Act burden is upon the applicant/accused to show that there are reasonable grounds to believe that, he is not guilty of the offence and to satisfy the Court that applicant/accused is not likely to commit similar offence. Applicant/accused has not demonstrated any material to show that there are reasonable grounds to believe that applicant/accused is not guilty of offence alleged to have been committed by him. 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(c) and section 29 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 coaccused 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.

8.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 the possibility that, after release of applicant/accused, the applicant/accused may tamper the prosecution 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.

9.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.

10.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 BA No.973/2023 of applicant/accused No.2 Akbarali Anwarali Shaikh in C.R. No.31/2023 in
Special Case No.1763/2023, is rejected.

2.NDPS BA No.973/2023 is disposed of accordingly.

(Pronounced in open Court) Date : 18/01/2024. (K.P. Kshirsagar) N.D.P.S Special Judge City Civil & Sessions Court, Gr. Bombay (CR.43) Dictated on : 18/01/2024 Transcribed on : 18/01/2024 Checked on : 18/01/2024 Signed on : 18/01/2024 NDPS BA No.973/2023 ..8.. in Spl. Case No.1763/2023 “CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER” UPLOAD DATE 18.01.2024 TIME NAME OF STENOGRAPHER 04.50 p.m. Sanjay Baliram Kaskar (Stenographer Grade-I) Name of the Judge H.H.J. SHRI. K.P. KSHIRSAGAR NDPS Spl. Judge (C.R.No.43) Date of Pronouncement of Judgment/Order. 18.01.2024 Judgment/order signed by P.O on 18.01.2024
Judgment/order uploaded on 18.01.2024