NDPS BA No.715/2023
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in Special Case No.1936/23
MHCC020123472023
Presented on
: 18-08-2023
Registered on : 18-08-2023
Decided on
: 05-01-2024
Duration
: 04 M, 18 Days
IN THE SPECIAL COURT FOR NARCOTIC DRUG AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
NDPS BAIL APPLICATION NO.715 OF 2023
IN
NDPS REMAND APPLICATION NO.1008 OF 2023
IN
SPECIAL CASE NO.1936 OF 2023
Farid Rehamatulla Shaikh
Aged : 26 years, Occ: R/at : Room No. 1, Fitwala Compound,
Ahele Hadis Masjid Opp., Arpan
Hospital Beside, Kurla West, Mumbai 70.

)
)
)
)
) .. Applicant/Accused No.4
V/s.
The State of Maharashtra
)
(At the instance of Kurla police station, )
Mumbai, vide C.R. No.59/2023).
) .. Respondent/Prosecutor
Appearance :
Ld. Adv. Mr. Gorakh Liman, for the applicant/accused.
Ld. APP Mr. Tarange, for the respondent/prosecution.
CORAM : K.P. KSHIRSAGAR
ADDL. SESSIONS JUDGE (C.R.43)
DATE
: 05/01/2024
NDPS BA No.715/2023
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in Special Case No.1936/23
ORAL ORDER
This is an application taken out by applicant/accused No.4
Farid Rehamatulla Shaikh under section 439 of Code of Criminal
Procedure for enlarging him on bail in C.R. No.59/2023 (now Special
Case No.1936/2023) registered at Kurla police station, Mumbai for the
offences punishable under section 8(c) r/w section 21(c), section 20(b)
ii (a) 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.1936/2023. Heard,
arguments advanced by Ld. Advocate for the applicant/accused and
learned APP.
3.

Ld. Advocate for the applicant/accused No.4 argued that,
this is the first bail application taken out by the applicant/accused No.4
and no application for grant of bail is pending in High Court or earlier
rejected by any Higher Court. Ld. Advocate for the applicant/accused
argued that, as per the prosecution case on 02/05/2023, 82.25 gram
Charas and 102.5 gram Mephedrone (MD) was recovered from the
possession of the co-accused No.1 Shamshad Hussain Shafi Ansari.
During investigation co-accused No.1 Shamshad Hussain Shafi Ansari
made disclosure statement that, he had procured the contraband
recovered from him from the applicant/accused No.4 and the coaccused No.3 Sameer Mohd. Isaq Shaikh @ Chuja, Mohammad Umed
Aslam Khan @ Umed Bhopali and co-accused Parvej Alam Israr
Mohamed Ansari @ Parvehj Bakery and other wanted accused. Except
the disclosure statement of the co-accused No.1 Shamshad Hussain
Shafi Ansari that the applicant/accused No.4 and other co-accused
NDPS BA No.715/2023
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in Special Case No.1936/23
supplied the contraband to him, there is no any material to connect the
applicant/accused No.4 with the co-accused No.1 Shamshad Hussain
Shafi Ansari from whom the contraband is recovered in the present
crime. There is nothing that the mobile phone recovered from the coaccused No.1 Shamshad Hussain Shafi Ansari were used by the
applicant/accused No.4. The date of offence is 02/05/2023. The call
details record at page number 155 is of dated 01/04/2023 to
03/04/2023. There is nothing to show that, any call was made by the
applicant/accused
to
co-accused
No.1.

Wanted
co-accused
had
contacted the co-accused No.1 Shamshad Hussain Shafi Ansari prior to
one month of the date of incident.
4.

The customer application form at page number 137 and
145 reveals that, the mobile number referred therein is not registered in
the name of the applicant/accused No.4. There is no recovery of
contraband or any mobile from the applicant/accused No.4. Disclosure
statement is as to the place where the contraband was supplied and
there is no independent discovery on the basis of the disclosure
statement. Therefore, said statement of co-accused No.1 is not
admissible. There is no independent positive material on record to
connect the applicant/accused No.4 with the co-accused No.1
Shamshad Hussain Shafi Ansari and other co-accused. There is neither
any
Whats-App
chats
or
monetary
transactions
between
applicant/accused No.4 and the co-accused. Final report is already filed.
As such, investigation is already completed. There is no admissible
evidence on record to connect the applicant/accused No.4 with the
present crime. There are material infirmities in the prosecution case.
The applicant/accused is ready to abide all conditions which the court
NDPS BA No.715/2023
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in Special Case No.1936/23
may impose. Therefore, Ld. Advocate for the applicant/accused prayed
that, applicant/accused be released on bail.
Ld. Advocate for the applicant/accused No.1 kept his
reliance on the following citations:
No.1
State by (NCB) Bangaluru Vs. Pallulabid Ahmad
Arimutta & Anr., in Petition for Special Leave to
Appeal (Criminal) No.242/2022 (Arising out of
Diary No.22702/2020), dated 10.01.2022 of
Hon’ble Apex Court.

No.2
Kurban Ali S/o Daud Ali Vs. Intelligence Officer,
Narcotics Control Bureau & Anr., in Bail
Application No.4457/2021, dated 05.07.2023
of Hon’ble Bombay High Court.

No.3
Zaid Javed Petiwala Vs. Narcotics Control
Bureau
&
Anr.,
Bail
Application
No.2309/2022, dated 10/11/2022 of Hon’ble
Bombay High Court.

No.4
Wasim Mehmood Abrehani Vs. Union of
India
and
Anr.,
Bail
Application
No.1499/2020, dated 13/04/2022 of Hon’ble
Bombay High Court.

No.5
Ranjan Shaam Mawar Vs. The State of
Maharashtra,
in
Bail
Application
No.3880/2021, dated 11/10/2022 of
Hon’ble Bombay High Court.

No.6
Shaikh Ashpak s/o Shaikh Abdul Vs. Union
of India and Anr., Bail Application
No.723/2021, dated 19/09/2022 of Hon’ble
Bombay High Court.

No.7
Iran Khan S/o Kasam Khan Pathan Vs. The
State of Maharashtra, in Criminal Revision
NDPS BA No.715/2023
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in Special Case No.1936/23
Application No.11/2007 in NDPS Spl. Case
No.05/2006, dated 28.03.2007 of Hon’ble
Bombay High Court.
No.8
Farida Nasim Shaikh @ Aapa Vs. The State
of Maharashtra, in Bail Application
No.3018/2021, dated 02.08.2022 of Hon’ble
Bombay High Court.

Court has gone through the observations made therein.
5.

On the other hand, Ld. APP argued that, commercial
quantity of contraband is recovered from the possession of the coaccused No.1 Shamshad Hussain Shafi Ansari alongwith weighing scale.
It reveals that, co-accused No.1 Shamshad Hussain Shafi Ansari is a
drug peddler. In the disclosure statement at page number 39 of the final
report,
the
co-accused
No.1
Shamshad
Hussain
Shafi
Ansari
categorically disclosed that, he had procured the contraband recovered
from him from the applicant/accused No.4 and other co-accused and he
used to procure the said contraband from them and he shown the place
at which the applicant/accused No.4 and other co-accused used to
supply contraband to him. In the disclosure statement name of the
applicant/accused No.4 is there. Therefore, there is sufficient material
to connect the applicant/accused No.4 with the co-accused No.1
Shamshad Hussain Shafi Ansari and with the present crime. The
quantity of contraband recovered in the present crime is commercial
quantity. Therefore, rigours of section 37 of the NDPS Act are
applicable. Applicant/accused failed to demonstrate that, there are any
reasonable grounds to believe that, applicant/accused is not guilty of
the offence alleged to have been committed by him. From appreciation
of material on record there appear reasonable grounds to believe that
NDPS BA No.715/2023
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in Special Case No.1936/23
applicant/accused is guilty of the offence alleged to be committed by
him. There are no material infirmities in the prosecution case. Therefore
Ld. APP submitted that application be rejected.
6.

The applicant/accused is alleged to have committed offence
punishable under section 8(c) r/w section 21(c), section 20(b) ii (a)
and section 29 of of the NDPS Act. 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.
7.

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.

NDPS BA No.715/2023
8.

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in Special Case No.1936/23
From the appreciation of the material on record in the
NDPS Special Case No.1936/2023 it reveals that, in the alleged
disclosure statement at page number 39 of the final report co-accused
No.1 Shamshad Hussain Shafi Ansari has made statement that, the
contraband recovered from his possession was procured by him from
the applicant/accused No.4 and other co-accused and he used to
procure the same from the applicant/accused No.4 and other coaccused and he will show the place where the applicant/accused No.4
and other co-accused had supplied the contraband to him. It appears
that, after making the above disclosure statement the co-accused No.1
Shamshad
Hussain
Shafi
Ansari
had
shown
the
spot
where
applicant/accused No.4 and other co-accused had supplied the
contraband to him. In the case of Farida Nasim Shaikh @ Aapa Vs. The
State of Maharashtra cited supra relied by the applicant/accused the
Hon’ble Bombay High Court has observed that,
The legal position on the memorandum
panchnama drawn under section 27 of the
Indian Evidence Act, is well settled and the
four conditions, which are necessary for the
applicability of section 27 of the Act, being
(1) discovery of fact in consequence of an
information received from accused; (2)
discovery of such fact to be deposed to’ (3)
the accused must be in police custody when
he gave information; and (4) so much of
information as relates distinctly to the fact
thereby discovered is admissible.
Admittedly, in the present case it is not the case of the
prosecution that, on the basis of the disclosure statement any
contraband or any distinctly related fact is discovered which connects
the applicant/accused with present crime. Therefore, considering the
NDPS BA No.715/2023
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in Special Case No.1936/23
observations of the Hon’ble Bombay High Court in the case of Farida
Nasim Shaikh @ Aapa Vs. The State of Maharashtra cited supra the
disclosure statement at page number 39 of the final report doesn’t
fulfilled the conditions which are necessary for applicability of section
27 of the Indian Evidence Act and therefore, it cannot be said to be
admissible in evidence.
9.

Admittedly, there is no recovery of any contraband or
mobile from the applicant/accused. It is not the case of the prosecution
that, applicant/accused used particular mobile number and he was in
contact with the co-accused No.1 Shamshad Hussain Shafi Ansari. The
document at page number 155 of the final report reveals the call data is
from 01/04/2023 to 03/04/2023. The date of the present offence is
02/05/2023. The document at page number 136, 137 and 145 reveals
the mobile number 7977359431 was in the name of the one Mumtaz
Mohd. Shafi Ansari and one mobile number 9326871008 was in the
name of one Sayyed Irshad Ali. Moreover, Ld. APP conceded the fact
that, except wanted accused Akbar @ Akbar Khan @ Ahmed
Mohammad Shafi Shaikh @ Ahmed Akbar Mohamed Shafi Shaikh no
CDR available in respect of applicant/accused or other co-accused.
From the prima facie appreciation of the material on record there
appear no material to show any monetary transaction between
applicant/accused and the co-accused No.1 Shamshad Hussain Shafi
Ansari. None of the mobile recovered stands in the name of the
applicant/accused. Prima facie there appear no material to show that,
applicant/accused was in contact with the co-accused No.1 Shamshad
Hussain Shafi Ansari on mobile. As such from the appreciation of the
material on record it appears that, there is no substantial material on
record to establish the live link between applicant/accused and the co-
NDPS BA No.715/2023
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in Special Case No.1936/23
accused No.1 Shamshad Hussain Shafi Ansari. As discussed above the
disclosure statement of the co-accused No.1 Shamshad Hussain Shafi
Ansari is not admissible in evidence. Therefore, from the appreciation of
the material on record there appear substance in the contention of the
applicant/accused that, there is no substantial material on record to
show any nexus between applicant/accused and co-accused No.1
Shamshad Hussain Shafi Ansari and there is no positive material on
record to show that, applicant/accused had hatched conspiracy with
any of the co-accused. Till date no conviction is attributed to the
applicant/accused.
10.

From the appreciation of the material on record in the
present case prima facie there appear material discrepancy in the
prosecution case. From the appreciation of the material on record there
appear no substantial independent legally admissible evidence on
record to indicate the nexus between applicant/accused and the coaccused or to show that, applicant/accused and the other co-accused
had hatched any conspiracy. The above discrepancy in the present case
is material. Therefore, prima facie there are reasonable grounds to
believe that, applicant/accused is not guilty of the offence punishable
under section 8(c) r/w section 21(c), section 20(b) ii (a) and section 29
of of the NDPS Act. As such in the present crime applicant/accused has
demonstrated reasons to show that there are grounds to believe that
applicant/accused is not guilty of offence alleged to have been
committed by him. Considering the nature of the offence and the fact
that, applicant/accused is not alleged to be previously convicted for any
criminal
antecedent
the
court
is
also
satisfied
that,
the
applicant/accused is not likely to commit similar offence again. As such
in the present case conditions under section 37 of the NDPS Act are also
NDPS BA No.715/2023
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in Special Case No.1936/23
fulfilled and therefore, embargo put by section 37 of NDPS act is also
lifted.
11.

Personal liberty is most precious of all fundamental rights.

There is presumption of innocence unless the guilt is proved.

The
object of the bail is to secure the attendance of the accused at the trial
and the object is neither punitive and preventive. From the material on
record prima facie, it appears that, applicant/accused had co-operated
during the investigation. Applicant/accused has also undertaken to cooperate during the trial. From prima facie appreciation of the material
on record, presence of the applicant/accused is likely to be secured even
if he is released on bail. Moreover, interest of the prosecution can be
safeguarded by imposing certain conditions. Therefore, considering the
above discussion and prima facie appreciation of material on record
there appear no necessity for further detention of the accused for
facilitating further full and fair investigation.
12.

Considering the nature of offence, gravity of offence age
and antecedents of the accused and from prima facie appreciation of the
material on record release of the accused on bail at this stage is not
likely to be prejudicial either to fair investigation or to the interest of
society at large. Therefore, there appear justifiable grounds for releasing
the applicant/accused on bail at the stage. As such the present
application deserves to be allowed. Hence, the following order.
ORDER
1.

NDPS BA No.715/2023 in C.R. No.59/2023 in Special Case
No.1936/2023, is allowed.

NDPS BA No.715/2023
2.

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in Special Case No.1936/23
Applicant/accused No.4 Farid Rehamatulla Shaikh, be released
on bail in C.R. No.59/2023 for offences under section 8(c) r/w
section 21(c), section 20(b) ii (a) and section 29 of the NDPS
Act, 1985, registered by Kurla police station, Mumbai on
executing personal bond of Rs.50,000/- only (Rs. Fifty Thousand
only) with one surety in like amount on the following
conditions :
(a) Applicant/accused shall co-operate the Investigating Officer and
shall make himself available for interrogation by concern
Investigating Officer as and when required.
(b) Applicant/accused shall not tamper with prosecution evidence or
influence the prosecution witnesses in any manner.
(c) Applicant/accused shall co-operate in early disposal of the trial.
(d) Applicant/accused shall not commit any criminal offence while on the
bail.
(e) Applicant/accused and his surety shall provide their respective mobile
numbers and present address and proof of residence at the time of
execution of the bail bond/surety bond.
3.

NDPS BA No.715/2023, is disposed of accordingly.
(Pronounced in open Court)
Date : 05/01/2024.

(K.P. Kshirsagar)
N.D.P.S Special Judge
City Civil & Sessions Court,
Gr. Bombay (CR.43)
Dictated on
:
05/01/2024
Transcribed on
:
05/01/2024
Checked on
:
05/01/2024
Signed on
:
05/01/2024
NDPS BA No.715/2023
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in Special Case No.1936/23
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE
06.01.2024
TIME
NAME OF STENOGRAPHER
04.47 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.

05.01.2024
Judgment/order signed by P.O on 05.01.2024
Judgment/order uploaded on
06.01.2024