NDPS Spl RA 1223/2018
1
BA 943/2018
IN THE SPECIAL COURT FOR NARCOTIC DRUGS AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
BAIL APPLICATION NO. 943 OF 2018
IN
NDPS REMAND APPLICATION NO. 1223 OF 2018
Jahid Imamuddin Ansari @ Javed
Age – 48 yrs., R/A IBlock, Sayed
Kararhussain Chawl, Near Idgah
Maidan, Prem Nagar, Jogeshwari (E),
Mumbai – 400 060.
V/s.
State of Maharashtra
(Meghwani Police Station, C.R. 86/2018)
… Applicant/
Accused
… Respondent
Appearance :
Ld. Advocate Mr. Bhanushali for the applicant/accused.
Ld. APP Mr. Panjwani for the State.
CORAM : H.H. THE SPECIAL JUDGE (NDPS)
SHRI U. M. MUDHOLKAR
(C.R.NO.43)
DATE : 14th JANUARY, 2019.
ORAL ORDER
This is an application for granting of a bail. The
applicant/accused Jahid Imamuddin Ansari @ Javed was arrested in
C.R. No. 86/2018, registered at Meghwadi Police Station, Mumbai for
the alleged violation of Sec.8(c) r/w Sec. 22(b) of the NDPS Act, 1985.
2.
The prosecution case in nutshell reveals that the Officers of
respondent received an information from the reliable source about the
person coming for the sale of contraband. Hence, the raid was arranged
NDPS Spl RA 1223/2018
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BA 943/2018
at the spot given in information and it is alleged that the applicant was
found having in his possession 94 strips having 15 tablets in each of
Nitravet10 tablet, 475 strips having 10 tablets in each of Alko1
Alprazolam tablets and 109 bottles having Codeine Phosphate. As such
he came to be arrested and after cessation of his police custody,
presently he is in judicial custody.
3.
The bail is sought on the grounds that applicant/accused is
innocent and hard working. He is doing job as normal common man
and falsely implicated in the crime. The quantity of contraband
allegedly found with the applicant comes under the noncommercial
quantity and therefore, the rigors of Section 37 of the NDPS Act does
not get attracted. The mandatory provisions are not complied.
The
applicant/accused is permanent resident of Jogeshwari, Mumbai and
having deep roots in the society. He is ready to abide by the conditions
imposed by this Court, while releasing his on the bail. Investigation is
almost completed.
As such the applicant is entitled to be released on
bail. On these grounds it is prayed that applicant/ accused be enlarged
on bail.
4.
The respondent/State contested the petition by filing 3
replys dated 21/122018, 09/01/2019 and 14/01/2019. It is mainly
contended that the contraband has been seized from his possession by
strictly following the provisions under the NDPS Act.
The quantity of
contraband comes under the category of commercial quantity and
therefore, the applicant is not entitled for bail. It is further contended
that if released on bail he may abscond or indulge into similar activity.
On these grounds the rejection of the application has been prayed.
NDPS Spl RA 1223/2018
5.
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BA 943/2018
Heard Ld. Advocate Mr. Bhanushali for applicant & the Ld.
APP Mr. Panjwani for the State at length.
6.
It is submitted by the Ld. Defence Counsel that the quantity
of Codeine Phosphate, Nitravet and Aprazolam allegedly found in the
possession of present applicant needs to be considered in the light of
observations in the judgment in the case of Shahabuddin and another
V/s. State of Assam reported in 2012 (3) GAU LT 440. According to
the same the alleged quantity of the Codeine Phosphate, Nitravet and
Aprazolam would be below commercial quantity. As such the bar of Sec.
37 of the NDPS Act would not get attracted. As regards the calculation
of the drug Codeine Phosphate found in the Corex bottles as well as
Nitravet and Aprazolam, he also relied upon judgment in the case of
Ankush Chauhan V/s, State of H.P. decided on 25/04/2017 in Cr.M.P.
(M) No. 432/2017, wherein also the exact quantity of Codeine
Phosphate in the entire mixture of syrup called Corex was considered
and bail was granted to the applicant in that case. According to him
applicant is having deep root in society and there are no chances of his
absconding, if released on bail. As such he requested to allow the bail
application.
7.
As against this, it is submitted by the Ld. APP Shri.
Panjwani for the State that as per the notification to the entire quantity
of the mixture of Codeine Phosphate needs to be calculated, which
amounts to commercial quantity and as such there is bar of Sec. 37 of
NDPS Act, for release of the applicant on bail. He further submitted
that in the event of release of applicant/accused on bail, there is every
likelihood of his engaging in similar nature of activity of selling
NDPS Spl RA 1223/2018
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BA 943/2018
contraband and there is apprehension of his absconding from the course
of justice. Hence, prayed for rejection of the application.
8.
I have carefully considered the submissions of both the
sides and record. So far as quantity of Codeine Phosphate, Nitravet and
Aprazolam in the phencyrex bottles allegedly found in the possession of
the present applicant needs to be calculated, in the present case as per
the calculations which are reflected in para no. 34 of the judgment in
the case of Shahabuddin of Hon’ble Gauhati High Court. While making
that calculation the Hon’ble High Court has relied upon the calculations
which were carried out in the case of Micheal Raj V/s. Intelligence
officer of NCB, 2008 5 SCC 161 and Sayyad Aalam V/s. State of
Assam reported in 2011 Cr.L.J. 3140. The same methodology appears
to have been applied by the Hon’ble Himachal Pradesh High Court
while deciding the bail application of the applicant Ankush Chauhan,
cited supra.
Very recently taking into consideration all the earlier
pronouncements including that of the Hon’ble Apex Court, in the case of
Rajveer Singh @ Raju V/s. State of Punjab in CRMM350802018
decided on 12/08/2008, the Hon’ble Punjab & Haryana High Court
observed as under:
“In view of the above discussion, it is held that in case of a
mixture/solution containing neutral or nonpsychotropic
substance as well as the narcotic/ psychotropic substance, it is
only the quantity of such narcotic/ psychotropic substance
present in such mixture/solution; which is to be taken into
counting for the purpose of determining the ‘commercial
quantity’ of such narcotic/ psychotropic substance. The neutral
solution or nonpsychotropic substance is not to be counted
towards the commercial quantity of said narcotic psychotropic
substance present in mixture/solution.”
NDPS Spl RA 1223/2018
9.
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BA 943/2018
No counter judgment has been cited by the prosecution/
Learned APP Mr. Panjwani to take a different or contrary view than the
one which is reflected in the above judgments.
Under these
circumstances, at this stage, there is no alternative before this court
than to accept the argument submitted by Ld. Adv. Bhanushali for the
applicant. Taking into consideration the 3 replys of Meghwadi Police
Station and calculations reflected in the judgments cited supra if the
quantity of Codeine Phosphate in 109 bottles is considered then the
total quantity of Codeine Phosphate in those bottles would be 1.90 gms.
As per entry no. 28 of the table, the quantity of 1 Kg. and above would
be commercial quantity.
As per the above calculations the total
quantity of Codeine Phosphate is 1.90 gms which is below the small
quantity of 10 gm. Similarly, the exact quantity of Nitravet in 1410
tablets would be 14 gm and exact quantity of Alprazolam in 475 tablets
would be 4.75 gm. Thus, these quantities either taken individually or
collectively do not cross the limit of commercial quantity. Apart from
this the parameters on which the bail was granted to Ankush Chauhan
in the judgment cited supra are squarely applicable to the case at our
hand.
10.
It is equally a matter of record that since his arrest on
28/11/2018 he is in the custody and by this time the entire
investigation might have been completed except collection of CA
certificate. Except the panch witnesses all the other witnesses are the
public servants and 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
accused behind the bars till then. There is neither evidence nor
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BA 943/2018
allegation of any criminal antecedence to the discredit of the applicant.
Along with the application the applicant has produced the true copy of
AADHAR Card and Ration Card which show that he has fix place of
residence, which minimises the chance of his abscondance. Under these
circumstances his further detention in the judicial custody appears to be
unwarranted. 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. 943/2018 in NDPS Remand
Application No. 1223/2018 is hereby allowed.
2.
The applicant/accused – Jahid Imamuddin Ansari @
Javed, in C.R. No. 86/2018, registered with Meghawadi
Police Station, Mumbai, be released on bail on his executing
P.R. Bond of Rs.75,000/ (Rupees Seventy Five Thousand
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.
While on bail the applicant shall not indulge into
similar activity.
5.
Application is hereby disposed off accordingly.
14.01.2019.
Typed on
: 14.01.2019.
Checked on : 14.01.2019.
Signed on
: 14.01.2019.
(U. M. Mudholkar)
NDPS Special Judge,
Gr. Bombay.
NDPS Spl RA 1223/2018
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BA 943/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME
NAME OF STENOGRAPHER
:
:
15.01.2019, 04.00 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 14.01.2019.
JUDGMENT/ORDER
P.O. on
by 14.01.2019.
signed
JUDGMENT/ORDER uploaded on
15.01.2019.