IN THE COURT OF THE SPECIAL JUDGE FOR N.D.P.S. CASES
AT GREATER MUMBAI
N.D.P.S. BAIL APPLICATION NO.863 OF 2018
IN
N.D.P.S. REMAND APPLICATION NO.1023 OF 2018
CNR NO. : MHCC020152382018
Kone Adama,
]
Aged 28 years, Occ.: Cloth Business,
]
R/at Plot/Sector No.12, Sahara Building,
]
Bonkode, Koparkhairne, Navi Mumbai.
]
Accused present in judicial custody.
]
… Applicant/
Accused
V/s.
The State of Maharashtra
]
(at the instance of Dongri Police Station
]
in C.R./L.A.C.No.221/2018).
]
… Respondent
CORAM : HIS HONOUR THE SPECIAL JUDGE
M. S. MUNGALE (C.R.NO.44)
DATE : 8th January, 2019.
Mr. V. P. Shinde, Ld. Adv. for the applicant/accused.
Mr. B. G. Rajput, Ld. A.P.P. for the respondent/State.
ORDER
1.
The applicant/accused has filed this application under
Section 439 of the Code of Criminal Procedure for release on bail.
2.
It is alleged that by conducting raid on 17/10/2018
between 11.30 p.m. to 12.00 midnight, near Sandhurst Road Railway
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BA 863/18 in RA 1023/18
Station and Wadibunder Railway yard area, the applicant/accused was
arrested, whereas allegedly other 67 Nigerian accused persons
succeeded to run away from that place. Allegedly from the possession
of the applicant/accused 10 grams Cocaine and 16 grams Mephedron
@ M.D. were seized by the police officers.
3.
The applicant/accused has contended that he has been
falsely involved in this case. He has not committed any offence. The
contrabands Cocaine and Mephedron @ M.D. allegedly recovered from
his possession are of non commercial quantity, therefore, there is no
bar under Section Section 37 of the Narcotic Drugs and Psychotropic
Substances Act. On these grounds, the applicant/accused has requested
to release him on bail.
4.
The application is opposed by the Investigating Officer by
filing reply dated 06/12/2018. The Investigating Officer has contended
that the Assistant Commissioner of Police of Dongri Division had
received secret information that some Nigerian persons are engaged in
selling intoxicated substance near Sandhurst Road Railway Station and
Wadibunder Railway Yard area. Therefore, A.C.P., Police Inspectors of
Dongri police station and the officers of Railway Protection Force
jointly arranged raid in that area. At about 11.32 p.m., police officers
found that 67 Nigerian persons had gathered near Sandhurst Road
Railway line and Railway yard. Therefore, they went there with police
staff. On seeing them, 67 Nigerian persons succeeded to run away
from that place. However, police officers succeeded to accost the
present applicant/accused, who is also Nigerian person. The said
applicant/accused had assaulted on the head of the Police Constable
Shri Salim Gani Shaikh, who is attached to Wadibunder R.P.F. Thane
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and other two police officers. The applicant/accused hit three blows of
bamboo stick on the head of P.C. Salim Shaikh and attempted to cause
his death. So also, he caused injuries to other two police officers. Thus,
the applicant/accused had attempted to cause death of police officer by
obstructing his public duties. So also, he had formed unlawful assembly
with other 67 accused persons.
It is further contended that when
personal search of the applicant/accused was taken, from his
possession 10 grams Cocaine having value of Rs.30,000/ and 16 grams
Mephedron @ M.D. having value of Rs.16,000/, one mobile phone and
cash amount of Rs.700/ were seized. Therefore, the F.I.R. was lodged
against the applicant/accused and other absconded 67 Nigerian
persons by P.C. Shri Salim Shaikh in the Wadibunder R.P.F. Thane for
the offence punishable under Sections 307, 353, 332, 333, 143, 144,
145, 147 and 149 of the Indian Penal Code and under Section 8(c)
punishable under Sections 21(a) and 22(c) of the N.D.P.S. Act.
5.
It is further contended by the Investigating Officer that the
applicant/accused has not produced his Passport and Visa. So also, he
has
not
provided
his
residential
address
at
Mumbai.
The
applicant/accused has attempted to commit murder of police officer. So
also, he was found engaged in selling contrabands Cocaine and
Mephedron. If bail is granted to the applicant/accused, he will continue
to do illegal business of selling contrabands by staying illegally in
Mumbai. So also, there is possibility of his absconding by going to his
own country. On these grounds, the Investigating Officer has requested
to reject the bail application.
6.
Heard the arguments submitted by the learned Advocate
Mr. V. P. Shinde for the applicant/accused and the learned A.P.P.
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Mr. B. G. Rajput for the respondent/prosecution. Perused the
investigation papers including medical case papers of the first
informant P.C. Shri Salim Gani Shaikh. As per the prosecution case,
from the possession of the applicant/accused, 10 grams Cocaine and 16
grams Mephedron was seized. The quantity of both said contrabands is
non commercial quantity and therefore, there is no bar under Section
37 of the N.D.P.S. Act for grant of bail to the applicant/accused.
7.
The main contention of the Investigating Officer is that the
applicant/accused had attempted to commit murder of the police
officer who was performing his duties. As per the contention of the first
informant P.C. Salim Shaikh in the F.I.R., the applicant/accused gave
three blows of bamboo stick on his head and caused bleeding injuries
to him. So also, other absconding Nigerian persons assaulted and
caused injuries to P.S.I. Shri Sachin Dhage and P.C. Shri Kiran. The
medical certificates of the first informant P.C. Salim Shaikh, P.S.I.
Dhage and P.C. Kiran indicate that in the hospital, P.C. Salim Shaikh
had informed that stone was hit on his head by the present
applicant/accused Kone Adama. He had not informed to the medical
officer that he was assaulted 23 times on his head by bamboo stick.
Further medical papers indicate that the nature of the injury is simple
and not grievous injury. The injuries on the person of P.C. Kiran and
P.S.I. Sachin are also of simple nature. They had not sustained any
bleeding injuries. They had informed the medial officer that they had
sustained accidental injuries. Thus, prima facie it appears that at the
time of conducting raid by police officers, the applicant/accused and
other absconding 67 accused persons assaulted the police officers,
caused obstacle in their public duty. But, prima facie injuries sustained
by police officers are not serious in nature. More than two months are
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already lapsed after arrest of the applicant/accused. Most of the
investigation is already over. The contention of the learned A.P.P. is
that the applicant/accused has not produced his Passport and Visa to
show that he had lawfully entered on the land of this country. If while
granting bail, certain conditions including the condition of reporting to
the police station and the condition of producing on record the
Passport, Visa and residential address proof of the applicant/accused in
Mumbai, are imposed, the purpose to secure presence of the
applicant/accused during trial will be served. Hence, I pass the
following order :
ORDER
1.
Bail Application No.863/2018 is allowed in the following
terms :
(i)
The applicant/accused Kone Adama be released on bail on
his executing P.R. bond of Rs.50,000/ and surety of like amount.
(ii)
The applicant/accused shall be at liberty to submit one or
more sureties for compliance of the surety amount.
(iii)
Before release on bail, the applicant/accused shall produce
on record his photograph, Passport and Visa.
(iv)
The passport and Visa of the applicant/accused shall not
be returned to him without specific order of this Court.
(v)
After
release
on
bail,
within
one
month,
the
applicant/accused shall produce on record his residential address proof
in Mumbai.
(vi)
Till the chargesheet is filed, the applicant/accused shall
report to the Investigating Officer on each Monday between 11.00 a.m.
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BA 863/18 in RA 1023/18
to 2.00 p.m.
(vii)
After filing of the chargesheet, the applicant/accused shall
report to Dongri police station on last Monday of each month between
11.00 a.m. to 2.00 p.m. till final disposal of the criminal case against
him.
(viii)
The applicant/accused shall not leave India without prior
permission of this Court.
(ix)
The
applicant/accused
shall
not
tamper
with
the
prosecution evidence.
2.
Application stands disposed of accordingly.
Date : 08/01/2019.
Dictated on
Transcribed on
Signed on
(M. S. Mungale)
N.D.P.S. Special Judge,
City Civil & Sessions Court,
Gr. Mumbai.
: 08/01/2019.
: 10/01/2019.
:
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME
11/01/2019 at 5.00 p.m.
NAME OF STENOGRAPHER
Bahushruta Y. Jambhale
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BA 863/18 in RA 1023/18
Name of the Judge ( With Court H.H.J. Shri. M. S. Mungale
Room No.)
(Court Room No.44)
Date
of
Pronouncement
JUDGEMENT/ORDER
of
08/01/2019.
JUDGMENT/ORDER signed by
P.O. on
11/01/2019.
JUDGEMENT/ORDER uploaded on
11/01/2019.