NDPS RA 873/2018
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BA 839/2018
IN THE SPECIAL COURT FOR NARCOTIC DRUGS AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
BAIL APPLICATION NO. 839 OF 2018
IN
NDPS REMAND APPLICATION NO. 873 OF 2018
Chukwve Meka Daniel Ajah
Age 24 years, Occ.: Nil,Foreign National,
R/A Room No. 01, Saikrupa,Welfare Society,
Rathodi, Inaswadi, Marve Road, Malad (West)
Mumbai – 400064.
V/s.
The State of Maharashtra
(at the instance of Sr. Inspector of Police
Malwani Police Station, Mumbai,
vide CR/LAC No. 284/2018 dtd. 04/09/2018.
… Applicant
/ Accused
… Respondent.
Appearance:
Ld. Advocate Mr. V. P. Shinde 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: 15th DECEMBER, 2018.
ORAL ORDER
This is an application for bail filed by applicant/accused
Chukwve Meka Daniel Ajah on account of his arrest by the officers of
Malvani police station, Mumbai for commission of offence punishable
u/s. 8(c) r/w 21 and 29 of NDPS Act, 1985.
2.
The
prosecution
case
in
nutshell
reveals
that
on
04/09/2018 on the basis of received information, raid was arranged
NDPS RA 873/2018
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BA 839/2018
and applicant and his associates were found possessing total quantity of
152 gm cocaine and the same came to be seized by the following due
process. In fact applicant was found having in his possession 22 gm of
cocaine. Thereafter, the applicant/accused along with his associates
were 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 cocaine allegedly seized from the possession of the present
applicant comes under the category of noncommercial quantity and
therefore, the bar of Section 37 of the NDPS Act does not get attracted.
He is ready to abide by the conditions imposed by this Court, while
releasing him on the bail. It is further contended that he is ready to
surrender his passport before release and he will not abscond.
Similarly, he does not have criminal antecedent. The investigation is
completed and therefore extension of his judicial custody is
unwarranted. On these grounds it is prayed that applicant/ accused be
enlarged on bail.
4.
The respondent/State contested the petition by filing reply
dated 30/11/2018 and on the application itself. 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 applicant accused is
a foreigner and therefore, he may abscond if, released on bail. So also
in the event of his release on bail he may indulge into similar activity.
On these grounds, it is prayed that the application be rejected.
NDPS RA 873/2018
5.
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BA 839/2018
Heard Ld. Advocate Mr. Bhandary for applicant and the Ld.
APP Mr. Panjwani for the State, at length.
6.
It is submitted by the Ld. Defence Counsel that the quantity
of cocaine allegedly seized at the instance of applicant/accused is the
noncommercial 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 the applicant is ready to
surrender his passport and also the evidence regarding permanent place
of residence, and therefore, he will not abscond, if released on bail. He
further submitted that now the chargesheet is filed and therefore,
extension of the judicial custody is not required. 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 individual possession 22
gms of cocaine, which is undoubtedly noncommercial quantity.
Naturally the bar under section 37 of the NDPS Act does not get
attracted.
8.
It is true that the total quantity of cocaine found in
possession of applicant and his two associates is 110 gm which is
certainly a commercial quantity attracting rigors of Section 37 of the
NDPS Act. However, in the case at our hand there is no material to
indicate that there was conspiracy between the present applicant and
the coaccused and therefore, the total quantity of the contraband
NDPS RA 873/2018
cannot be looked into.
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BA 839/2018
In this respect the useful reference of the
judgment in the case of Amarsingh Ramjibhai Barot V/s. State of
Gujarat, reported in 206 ALL MR (Cri.) 229 (S.C.) can be made,
wherein it is observed by the Hon’ble Apex Court that
“where two accused persons were found together with
heroine more than the commercial quantity but
individually less than the commercial quantity, Section 29
is not attracted. There is no material to indicate the
conspiracy between the present applicant and the other
accused and therefore, applicant is entitled for bail.”
9.
It is equally a matter of record that since his arrest on
04/09/2018 he is in the custody and the chargesheet is already filed.
So, also the majority of witnesses are police officers. 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
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 is ready to surrender his
passport and thereby the chance of his abscondance would be minimal.
There is neither allegation nor evidence regarding criminal antecedent
to the discredit of the applicant.
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. 839/2018 in NDPS Remand
Application No. 873/2018 is hereby allowed.
NDPS RA 873/2018
2.
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BA 839/2018
The applicant/accused Chukwve Meka Daniel Ajah,
in C.R./LAC No. 284/2018 registered with Malvani police
station, Mumbai, be released on bail on his executing P.R.
Bond of Rs.1,00,000/ (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
way.
4.
Before his release, the applicant shall surrender his
passport with the Registrar (Sessions) of this Court and shall
also file with this court the documentary proof of his present
place of residence.
5.
Bail Application stands disposed off accordingly.
15.12.2018.
Typed on
: 15.12.2018.
Checked on : 15.12.2018.
Signed on
: 15.12.2018.
(U. M. Mudholkar)
NDPS Special Judge,
Gr. Bombay.
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BA 839/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME
NAME OF STENOGRAPHER
:
:
15.12.2018, 03.45 pm.
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 15.12.2018.
JUDGMENT/ORDER
P.O. on
by 15.12.2018.
signed
JUDGMENT/ORDER uploaded on
15.12.2018.