NDPS BA NO.700-2023

in NDPS RA No.662/2023 MHCC020121842023

Presented on : 14-08-2023
Registered on : 14-08-2023
Decided on : 05-09-2023 Duration : 21 Days

IN THE SPECIAL COURT FOR NARCOTIC DRUG AND PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY NDPS BAIL APPLICATION NO.700 OF 2023 IN NDPS REMAND APPLICATION NO.662 OF 2023

Asif @ Batla Yunus Qureshi
Aged : 32 years, Occ:
R/at : Building No.9/A, Room No.402, Lallubhai
Compound Mankhurd, Mumbai-400 043. ) .. Applicant/accused

V/s.

The State of Maharashtra )
(At the instance of Mankhurd police station, Mumbai, ) vide C.R. No.310/2023) .. Respondent/Prosecutor

Appearance :
Ld. Adv. Ms. Jyoti Pangerkar, for the applicant/accused.
Ld. APP Mr. P.J. Tarange, for the respondent/prosecution.

in NDPS RA No.662/2023
CORAM : K.P. KSHIRSAGAR
ADDL. SESSIONS JUDGE (C.R.43)
DATE : 05/09/2023 ORAL ORDER

This is an application taken out by applicant/accused Asif @ Batla Yunus Qureshi under section 439 of Code of Criminal Procedure for enlarging him on bail in C.R. No.310/2023 registered at Mankhurd police station Mumbai for the offences punishable under section 8(c) r/w section 22 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 Ld. Advocate for the 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 any superior court. Ld. Advocate for the applicant/accused argued that, as per prosecution case on 16/05/2023, 23 bottles of 100 ml each containing Chlorpheniramine Maleate & Codeine Phosphate syrup PHENSIREST were recovered from the possession of the applicant/accused. Therefore, offence punishable under section 8(c) r/w section 22 of NDPS Act is registered against the applicant/accused.

The applicant/accused is not having any criminal antecedents. The pure quantity of the codeine phosphate in the seized bottles only is to be considered.

Therefore, the quantity of contraband recovered doesn’t come under the commercial quantity. The applicant/accused is resident of Mumbai. The applicant/accused is ready to abide all conditions which the court may impose. Therefore, Ld. Advocate for the applicant/accused prayed that, applicant/accused be enlarged on bail.

4.On the other hand, Ld. APP argued that, 23 bottles of 100 ml each containing Chlorpheniramine Maleate & Codeine Phosphate syrup PHENSIREST were recovered from the conscious possession of
the applicant/accused. The neutral substance wherein codeine is mixed is also required to be considered for considering the quantity of contraband recovered. The weight of the quantity of codeine mixed syrup recovered is more than 1 Kg. Therefore, quantity of contraband recovered from the applicant/accused is of commercial quantity. Therefore, rigours of section 37 of the NDPS Act are applicable to the present case. Moreover, the applicant/accused has not demonstrated any material to show that there are grounds to believe that applicant/accused is not guilty of offence alleged to have been committed by him. On the other hand, from appreciation of material on record
there appear reasonable grounds to believe that applicant/accused is guilty of the offence alleged to be committed by him. Therefore, the applicant/accused has not fulfilled/satisfied the conditions under section 37 of the NDPS Act. Therefore Ld. APP submitted that application be rejected.

5.From the matter on record, it appears that, the applicant/accused is alleged to have committed offence punishable 8(c) r/w section 22 of the NDPS Act. Judicial notice of the judgment in the case of Hira Singh and Another Vs. Union of India and Another, can be taken wherein it has been observed that in case of seizure of mixture of narcotic drugs or psychotropic substance with one or more neutral
substance, the quantity of neutral substance is not to be excluded and is to be taken into consideration for determining the quantity of the contraband. Therefore, there appear no substance in the contention of the applicant/accused that, pure quantity of codeine in the mixture is required to be considered for considering the quantity of the contraband recovered. As such from the appreciation of the material on record it appears that, the quantity of contraband recovered from the applicant/accused is commercial quantity. The punishment provided for the offence may extend upto 20 years imprisonment and also fine which may extend upto One Lakh rupees. 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.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, the 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 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 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.

8.In the present matter till date investigation is not completed. Release of the applicant/accused may hamper the further investigation. 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 the 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 Bail Application No.700/2023 of applicant/accused Asif @ Batla Yunus Qureshi in C.R. No.310/2023 in NDPS RA No.662/2023, is rejected.

2.NDPS Bail Application No.700/2023 is disposed of accordingly.

(Pronounced in open Court)
Digitally signed by KIRAN PRAKASH KIRAN KSHIRSAGAR PRAKASH KSHIRSAGAR Date: 2023.09.11
12:27:11 +0530 Date : 05/09/2023. (K.P. Kshirsagar) N.D.P.S Special Judge City Civil & Sessions Court,
Gr. Bombay (CR.43) Dictated on : 05/09/2023 Transcribed on : 06/09/2023 Checked on : 08/09/2023 Signed on : 08/09/2023 NDPS BA NO.700-2023 ..7.. in NDPS RA No.662/2023 “CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER” UPLOAD DATE 11.09.2023 TIME NAME OF STENOGRAPHER 12.24 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. 05/09/2023 Judgment/order signed by P.O on 08/09/2023 Judgment/order uploaded on 11/09/2023