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BA 877/18
IN THE COURT OF SPECIAL JUDGE FOR N.D.P.S CASES FOR
GREATER BOMBAY AT MUMBAI
NDPS BAIL APPLICATION NO.877/2018
IN
N.D.P.S. R.A. No. 1133/2018
Manishkumar Rajnath Kushwah
..Applicant/Accused
V/s.
The State of Maharashtra,
(at the instance of DCB, CID,
Unit 12, C.R. No.16/18)
…Respondents
Appearances:­
Ld. Advocate Mr. Dilip Mishra for applicant/accused.
Ld. APP Mr. P.S Tawade for Respondent/State.
Coram :H.H.J The Special Judge (NDPS)
Shri. V.V. Vidwans (CR No.42).
Date : 13.12.2018
ORAL ORDER
1.

This is an application for grant of regular bail filed on
behalf of accused no.1 Manishkumar Rajnath Kushwah u/s. 439 of
Cr.P.C. Say of IO and Ld. APP was called. Common say is filed in this
application and in B.A. No.878/18 vide Exh.2 on record. Seen and
considered the say.
2.

I have heard oral submissions of Ld. Adv. Mr. Mishra for
the accused and Ld. APP Mr. Tawade for the State.
3.

It is submitted by the Ld. Counsel for the accused that, as
per prosecution case, in CR No.16/18 applicant/ accused was arrested
on 15.11.2018 by DCB CID Unit 12 and thereafter, in view of same, C.R
No.299/18 came to be registered at Dahisar police station against
applicant/ accused for committing offences under NDPS Act. Ld.

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BA 877/18
Counsel for the applicant submitted that, while PI Gavas and staff of
DCB CID Unit 12 were on patrolling duty at around 4 pm, they had
noticed an auto­rickshaw bearing No.MH 47AX 8320 moving in
suspicious manner and was accompanied by two suspects. Police had
doubt that they were stealing something in a white colour gunny bag in
auto­rickshaw. Police had questioned the suspects regarding gunny bag.
Police had doubt about their activities and panch witnesses were called.
During the search conducted by the police, 300 bottles of Codeine
cough syrup were recovered from back seat of the rickshaw. Similarly,
from front seat of the rickshaw where driver was sitting, two boxes of
Prozolam of 0.5 mg Alprazolam were found. Details of the seized
quantity of contraband recovered from the said boxes are given in para
(d) of the application. It consisted of 10 packets of Prozolam – quantity
1600 tablets; 8 packets of 600 tablets, 25 strips of 375 tablets and 10
strips of 100 tablets of Alko as per calculation given in para (e) of the
application.
4.

Ld. Counsel submitted that, thereafter as per panchanama,
police had recovered 3 gunny bags from the house near Dewaji Kamble
Chawl, Sant Kabir Marg, Kokniwada, Dahisar(E), Mumbai. In the said
recovery, first gunny bag was containing 340 bottles of Rexo, second
gunny bag was containing 350 bottles of Rexo and from the third gunny
bag they recovered 110 bottles of Rexofree. Total quantity recovered
from the auto­rickshaw and house comes to, 1100 bottles of Rexo. Ld.
Counsel for the accused submitted that, the accused has been falsely
implicated in this case and if details of the contents of the seized
contraband is verified from the remand papers, it can be seen that, as
per prosecution case, quantity of Codeine is 10 mg in each 5 ml of each
bottle of 100 ml. Thus, quantity of the codeine in 100 ml comes around
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BA 877/18
200 mg. The police have recovered 1100 bottles containing the above
said quantity of codeine, which comes to 220000 mg = 220 grams .
Similarly as per prosecution case, tablets of Prozolam, Alpracam,
Becalm contained 0.5 mg of Alprazolam and one tablet of Alko
contained 0.1 mg of Alprazolam. Thus the quantity of said table and
contraband contents i.e. Alprazolam comes as under:­
1.

1600 tablets of Prozolam containing quantity of
Alprazolam is 0.5 X 1600 = 800 mg.

2.

600 tablets of Alpracan containing quantity of
Alprazolam is 0.5 X 600 = 300 mg.

3.

375 tablets of Prozolam containing quantity of
Alprazolam is 0.5 X 375 = 187.5 mg.

4.

100 tablets of Alko containing quantity of Alprazolam
is 0.1 X 100 = 10 mg.
Hence total quantity of Alprazolam is 2675 tablets is
1297.5 mg. 1297.5 mg= 1.297 grams of Alprazolam
5.

On the basis of above factual background, Ld. Counsel for
the accused argued that, quantity of codeine phosphate recovered from
the possession of the accused/ applicant is 220 grams, which is non­
commercial quantity. Therefore, stringent provisions of Sec.37 of NDPS
Act are not attracted. Even if total quantity of the contraband recovered
from the possession of the accused is calculated, it is non­commercial
quantity. Hon’ble High Court has granted bail to the accused in similar
cases. Under these circumstances, this Court is empowered to grant bail
to the accused in its discretionary power. The applicant is having local
address in Mumbai and permanent address at Bhitari, State of Uttar
Pradesh. He is ready to abide by the conditions if any imposed by the
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BA 877/18
Court. Hence, application is liable to be allowed.
6.

Ld APP has strongly opposed the application and relied on
the say and submitted that, the applicant/ accused has been found in
possession of seized contraband of substantial quantity and offences
under NDPS Act are serious in nature. Investigation is still in progress. If
entire quantity of the seized contraband is calculated together, it is
commercial quantity and therefore, provisions of Sec.37 are attracted.
However, since the samples taken from the seized contraband, have
been sent to C.A for examination and report is awaited, at this stage
exact percentage of codeine or Alprazolam cannot be ascertained and
whether it is commercial or not cannot be opined. He submitted that,
there has been increase in illicit sale of composition of codeine
phosphate and Alprazolam and it is harmful to the society. If
application is granted, the applicant/ accused is likely to abscond and
will not be available for trial. The applicant is not having permanent
address in Mumbai. He is resident of State of U.P. Under the above
circumstances, application is liable to be rejected.
7.

I have gone through the remand papers and prima facie
material on record and taken into consideration oral submissions made
by both sides. It can be seen that, the seized contraband in present case
is substantial if it is taken together. But percentage of codeine
phosphate and Alprazolam in the above mixture cannot be ascertained
at this stage and whether it is commercial or not. However, it is settled
legal position as per decision of Hon’ble Bombay High Court that, at the
stage of considering bail application, individual quantity of the
contraband recovered from every accused is to betaken into
consideration and not entire quantity. Therefore, same would definitely
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BA 877/18
not commercial quantity. Under above circumstances, stringent
provisions of Sec.37 of the Act would not be applicable in the present
case and this Court can grant bail to the applicant/ accused in is
discretionary jurisdiction. Considering seriousness and gravity of the
matter and the fact that the applicant/ accused is permanent resident of
U.P, I am of the opinion that, if stringent conditions are imposed the
purpose of prosecution will be served. Hence, following order:­
ORDER
1.

Bail Application No.877 of 2018 is hereby allowed.

2.

Applicant/ accused Manishkumar Rajnath Kushwah
shall be released on his executing P.R.Bond of
Rs.75,000/­ (Rs. Seventy Five Thousand Only) with
one or two sureties to the above extent, one of which
should be local surety.

3.

The applicant/accused to attend the I.O at office of
DCB CID Unit 12 for the purpose of investigation
once in a fortnight on 1st and third Saturday of the
month between 11.00 am to 2.00 pm till filing of the
charge­sheet. If I.O is absent, then he should give
attendance to the PSO Incharge.

4.

The applicant/ accused shall not tamper with
prosecution witnesses/evidence in any manner and
co­operate in the investigation.

5.

The applicant/ accused shall furnish his cell/ landline
number and also of his two nearest relatives or his
two friends each, preferably residing in Mumbai.

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6.

BA 877/18
The applicant/accused shall produce the proof of his
identity and proof of residence at Mumbai at the time
of executing the bail bond.

7.

The applicant/ accused shall not commit similar
offence while on bail.
In case of breach of any of the above conditions by
the applicant/accused, it would entail cancellation of
bail.
Bail
Appln.

No.877/18
stands
disposed
of
accordingly.

Date:­ 13.12.2018
Dictated on: 13.12.2018
Transcribed on: 13.12.2018
HHJ signed on: 14.12.2018
(V.V. Vidwans)
N.D.P.S Special Judge
City Civil & Sessions Court,
Gr. Bombay (CR 42).

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BA 877/18
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 14.12.18
TIME: 5.10 pm .

(NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.

Name of the judge (with Court Room No.)

Shri V.V. Vidwans, Spl. Judge & Addl. Sessions
Judge (C.R. 42)
Date of pronouncement of Judgment/ Order
13.12.18
Judgment/ order signed by P.O on
14.12.18
Judgment/ order uploaded on
14.12.18