NDPS RA 884/2018
BA 879/2018
1
IN THE SPECIAL COURT FOR NARCOTICS DRUGS AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
BAIL APPLICATION NO. 879 OF 2018
IN
NDPS SPECIAL REMAND APPLICATION NO. 884 OF 2018
Kasim Mohd. Siddique Shivani
@ Mufti @ Imran Mufti.
Age 35 yrs, R/A Fancy Mahal, 170,
Ibrahim Merchant Road, In front of
Taj Office, 2nd Floor, Room No. 1/A,
Mohhmad Ali Road, Mumbai – 03.
… Applicant
/ Accused
Vs.
State of Maharashtra
(Anti Narcotic Cell, vide
C.R. No. 40/18 dated 06/09/2018).
… Respondent.
Appearance:
Ld. Advocate Mr. Dilip Mishra for the applicant/ accused.
Ld. APP Mr. Tawade for the State/ Respondent.
CORAM: H.H.THE SPECIAL JUDGE (NDPS)
SHRI. U. M. MUDHOLKAR
(C.R.NO.43)
DATED: 18th JANUARY, 2019.
ORAL ORDER
This is an application for bail filed by applicant/ accused
Kasim Mohd. Siddique Shivani @ Mufti @ Imran Mufti, on account of
his arrest by the officers of the ANC, Mumbai for commission of offences
punishable u/s. 8(c) r/w 22 of NDPS Act, 1985.
NDPS RA 884/2018
2.
The
BA 879/2018
2
prosecution
case
in
nutshell
reveals
that
on
06/09/2018 as per the directions of ACP, ANC, the patrolling duty was
arranged specifically meant for taking action against the persons
dealing with contraband substances on the eve of festival. Accordingly,
under the supervisions of PI Ninad Sawant two teams were formed and
the same were equipped with the raiding material. Accordingly when
the team came at the spot the applicant/ accused was found loitering
there in a suspicious circumstance and therefore, immediately two
panch witnesses were called and during his personal search 250 gms of
MD was found, which came to be seized by following due procedure.
During custodial interrogation, he disclosed that the same was supplied
to him by one Sufiyan Pathan of Sewree Cross Road. Therefore, on
07/09/2018 he was also placed under arrest for violation of provision
of NDPS Act,1985 as above.
After cessation of his ANC
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 contended that in fact, nothing has
been recovered from the possession of the accused and that there is
noncompliance of mandatory provisions contained in Section 42 and
50 of the NDPS Act, which entitles the applicant for bail. He is ready to
abide by the conditions imposed by this Court, while releasing him on
the bail.
On these grounds it is prayed that applicant/ accused be
enlarged on bail.
4.
The respondent/State contested the petition by filing reply
below the application itself as well as Exh.4. It is mainly contended that
the contraband has been seized from the possession of applicant by
strictly following the procedure established under the law. The quantity
NDPS RA 884/2018
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BA 879/2018
of seized MD comes under the category of commercial quantity which
disentitles the applicant for bail, as per Section 37 of the NDPS Act. It
is further contended that there is sufficient material on record
demonstrating
complicity of the present accused/applicant in the
commission of the alleged offences.
The applicant/accused has a
criminal antecedent of the case registered under the NDPS Act and
while on bail he has committed the present offence, therefore, in the
event of his release on bail he may abscond or may indulge into similar
activity. On these grounds the rejection of the application has been
prayed.
5.
Heard Ld. Advocate Mr. Dilip Mishra for applicant & the
Ld. APP Mr. Tawade for ANC, at length.
6.
It is mainly submitted by the Ld. Defence Counsel Mr. Dilip
Mishra that there has been total noncompliance of the mandatory
provision contained in Sections 42 and 50 of the NDPS Act. So also the
seized substance never came to be tested on the field testing kit.
Similarly, the CA certificate is also not collected and therefore, at this
moment there is no prima facie evidence to hold that the seized
substance is MD. He further submitted that the applicant/ accused is in
custody since 07/09/2018 and in the event the CA report resulted
positive for the MD, then again by cancelling his bail, he can be taken
into custody. In support of his such submissions he has relied upon the
judgment in the case of Mr. Venkata Srinivasan Subramanian V/s.
The State by Intelligence Officer, in Cr.L.P. No. 4668/2015 dated
03/08/2015,
NDPS RA 884/2018
7.
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BA 879/2018
According to him on the back drop of above submissions
the applicant/accused is entitled for bail.
8.
Per contra, the Ld. APP Mr. Tawade objected granting of
the bail by pressing the points raised in the reply dated 17/12/2018.
He further submitted that the case law relied upon by the applicant can
only be considered only at the time of trial and not before that. In other
words, his oral submission was replica of the contents of the reply. As
such he requested to reject the bail application.
9.
I have carefully considered the submissions of both the
sides, case law and record.
10.
It is the settled position of law that the mandatory
compliance of provisions of Sections 41 to 58 of the NDPS Act can also
be looked into at the time of decision of the bail application. On this
point the judgment in the case of Lawrence D’souza V/s State of
Maharashtra reported in 1992Cr. L.J.399 can be usefully referred,
wherein it is held that
The provisions of Ss. 41 to 58 of the Act would be
applicable right from the inception of the investigation. For
that purpose,the compliance with procedural requirements
must be insisted upon and must be shown, at least, prima
facie at the stage of bail.
11.
The main question that needs to be considered while
deciding the present bail application is whether in the give set of
circumstances the concerned officer seizing the contraband from
the possession of suspect/accused was under legal obligation to
follow the mandate of Section 42 and Section 50 of the NDPS
NDPS RA 884/2018
Act.
5
BA 879/2018
From the copy of the FIR and the remand papers, it
becomes crystal clear that the present case is not based on the
previous information and therefore, there was no occasion for the
concerned officer to note down the said information & to forward
its copies to the higher authorities, as contemplated u/S. 42 and
to appraise the accused about his right under Section 50 of the
NDPS Act. The recovery in the present case is the chance/
accidental recovery which does not at all require to be complied
with Section 42 and Section 50 of the NDPS Act.
12.
The close scrutiny of the fact of the present case, which can
be gathered from the FIR as well as other remand papers, which would
show that the patrolling duty was arranged for detecting drug dealers in
connecting with the NDPS cases and accidentally the team which was
headed by empowered officer PI Ninad Sawant noticed suspicious
activities of the present accused and therefore, called the panchas and
in their presence checked the bag of the accused wherein 250 gm MD
was found. From the record it does not appear that before checking the
said bag there was a reason to believe for the empowered
officers/searching officer that the bag might be containing narcotic drug
or psychotropic substance. He came to know about the contents of the
bag, as the contraband, only after he opened the same in presence of
panchas and not prior to that.
Even he did not carry out personal
search of the accused. In view of this it is crystal clear that the recovery
of contraband in the present case was purely a chance or accidental
recovery. In view of these observations this court finds no substance in
the submission of Ld. Advocate Mr. Dilip Mishra that the officer
concerned should have complied the mandatory provisions contained in
NDPS RA 884/2018
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BA 879/2018
Section 42 as well as 50 of the NDPS Act, cannot be accepted at all.
13.
During the course of argument, to know why the substance
at the time of its seizure was not checked on the field testing kit, report
was called from the investigation officer who came with additional
report dated 08/01/2019 informing with the documentary evidence
that the competent authority has not yet provided the kit for the testing
of MD. This documentary evidence is the public record and supports
the contentions of the IO and therefore, the same needs to be accepted.
Therefore, the submission and the judgment relied upon by Ld. Adv.
Mr. Mishra becomes inapplicable. Additionally, along with the report
the investigating officer has filed on record the true copies of CA report
and the data sheet, which show the result of analysis as detection of
Mephedrone (MD). On account of filing of this document also the
argument of Ld Adv. Mishra that the seized substance is not MD stands
rejected.
14.
As observed above the commercial quantity of MD has been
seized by strict observance of law and thereby the provisions contained
in Section 37 of the NDPS Act would come into play disentitling the
applicant for bail. The offences levelled against the applicant/ accused
are serious in nature and antisocial. Apart from this there is criminal
antecedent of the case registered under the NDPS Act to the discredit
of the applicant/accused. The release of applicant on bail, in the given
set of circumstances, would certainly cause serious prejudice to
prosecution and may pose serious danger to the society as the addiction
of drug has devastating effects on the mind of the addicted person.
Having regard to all these aspects no case is made out for release of the
applicant on bail. Hence, by rejecting all the arguments submitted the
NDPS RA 884/2018
BA 879/2018
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Ld. Advocate Mr. Dilip Mishra following order is passed to meet the
proper ends of the justice.:
ORDER
Bail Application No. 879/2018 in NDPS Special Remand
Application No. 884/2018 is hereby rejected and stands disposed
off accordingly.
18.01.2019.
Typed on
Checked on
Signed on
(U. M. Mudholkar)
NDPS Special Judge,
Gr. Bombay.
: 18.01.2019.
: 19.01.2019.
: 19.01.2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME
NAME OF STENOGRAPHER
:
:
21.01.2019, 01.10 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 18.01.2019.
JUDGMENT/ORDER
P.O. on
by 19.01.2019.
signed
JUDGMENT/ORDER uploaded on
21.01.2019.