NDPS BA NO.735/2023
..1..

in NDPS RA No.623/2023
MHCC020127412023
Presented on
: 24-08-2023
Registered on : 24-08-2023
Decided on
: 14-09-2023
Duration
: 21 Days
IN THE SPECIAL COURT FOR NARCOTIC DRUG AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
NDPS BAIL APPLICATION NO.735 OF 2023
IN
NDPS REMAND APPLICATION NO.623 OF 2023
Mohammad Bilal Musa Shaikh
Aged : 41 years, Occ:
R/at : Room No. 02, Chawl No. 2,
Zakina Bai Chawl, Kajupada, Sakinaka,
Kurla (West), Mumbai.

)
)
)
)
) .. Applicant/accused
V/s.
The State of Maharashtra
)
(At the instance of Kurla police station, )
Mumbai,
vide
Spl.
LAC/C.R. ) .. Respondent/Prosecutor
No.63/2023)
Appearance :
Ld. Adv. Mr. Prasad Sawant, for the applicant/accused.
Ld. APP Mr. Rajput, for the respondent/prosecution.

NDPS BA NO.735/2023
..2..

in NDPS RA No.623/2023
CORAM : K.P. KSHIRSAGAR
ADDL. SESSIONS JUDGE (C.R.43)
DATE
: 14/09/2023
ORAL ORDER
This is an application taken out by applicant/accused
Mohammad Bilal Musa Shaikh under section 439 of Code of Criminal
Procedure for enlarging him on bail in Spl. LAC/C.R. No.63/2023
registered at Kurla police station Mumbai for the offences punishable
under section 8(c) r/w section 22(c) 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 material on record. Heard, arguments advanced by
Ld. Advocate for the applicant/accused and learned APP.
3.

Learned Advocate for applicant/accused submitted that,
this is the first bail application taken out by the applicant/accused. No
other bail application taken out by the applicant/accused in respect of
the present crime is pending in Hon’ble High Court or any superior
court. Ld. Advocate for the applicant/accused argued that, as per
prosecution case on 12/05/2023, 816 bottles of 100 ml each containing
Chlorpheniramine Maleate & Codeine Phosphate syrup PHENSIREST
were recovered from the possession of the applicant/accused.
Therefore, offence punishable under section 8(c) r/w section 22(c) of
NDPS Act is registered against the applicant/accused. The Codeine
Phosphate syrup is exempted from the purview of the narcotic drugs or
psychotropic substance. Pure quantity of Codeine Phosphate in the
NDPS BA NO.735/2023
..3..

in NDPS RA No.623/2023
mixture is required to be considered. Moreover, in the present case the
provisions of section 50 of the NDPS Act were not complied. The
applicant/accused is not having any criminal antecedents. The
applicant/accused is arrested on 12/05/2023. Till date Chemical
Analyzer’s report is also not received. The applicant/accused is resident
of Mumbai. The applicant/accused is ready to abide all conditions which the
court may impose. Therefore, Ld. Advocate for the applicant/accused prayed
that, applicant/accused be enlarged on bail.
Ld. Advocate for the applicant/accused kept his reliance on
the following citations.

No.1
Mohd. Ahsan Vs. Customs, in Bail
Application
No.1136/2021,
dated
25/06/2021 of Hon’ble Delhi High Court.
2021 SCC OnLine Del 3465.

No.2
Pamit Sharma Vs. State of Punjab, in CRMM-24953/2021, dated 28/07/2023, of
Hon’ble Punjab and Haryana High Court.
2023 SCC OnLine P&H 996.

No.3
Pawan Arora Vs. State (Govt. of NCT of
Delhi) in Bail Application No.2064/2022,
dated 01/02/2022 of Hon’ble Delhi High
Court. 2023 SCC OnLine Del 522.

Court has gone through the observations made therein.
4.

On the other hand, Ld. APP argued that, 816 bottles of 100
ml each containing Chlorpheniramine Maleate & Codeine Phosphate
syrup PHENSIREST were recovered from the conscious possession of
the applicant/accused. Quantity recovered from the applicant/accused
NDPS BA NO.735/2023
..4..

in NDPS RA No.623/2023
is commercial quantity. The contraband was recovered during patrolling
and not on the basis of the prior information and that too from the
rickshaw in possession of the applicant/accused from public place.
Therefore, provision of section 43 of the NDPS Act is applicable and
there is non-compliance of section 50 of the NDPS Act. Considering the
quantity recovered, the rigours of section 37 of the NDPS Act are
applicable. Applicant/accused has not demonstrated any material to
show that there are reasons to believe that applicant/accused is not
guilty of offence alleged to have been committed by him. On the other
hand, from appreciation of material on record there appear reasonable
grounds to believe that applicant/accused is guilty of the offence
alleged to be committed by him. Therefore, the applicant/accused has
not fulfilled/satisfied the conditions under section 37 of the NDPS Act.
Therefore Ld. APP submitted that application be rejected.
5.

From the matter on record, it appears during patrolling the
contraband was recovered from the auto-rickshaw in the possession of
the applicant/accused from the public place. Therefore, provision of
section 42 is not applicable to present case. Moreover, recovery is not
from the person of the accused and from auto-rickshaw. Hence, there
appear no substance in the contention of the applicant/accused about
the non-compliance of provision of section 50 of the NDPS Act.
6.

Judicial notice of the judgment in the case of Hira Singh
and Another Vs. Union of India and Another, can be taken wherein it
has been observed that in case of seizure of mixture of narcotic drugs or
psychotropic substance with one or more neutral substance, the
quantity of neutral substance is not to be excluded and is to be taken
into consideration for determining the quantity of the contraband.

NDPS BA NO.735/2023
..5..

in NDPS RA No.623/2023
Therefore, there appear no substance in the contention of the
applicant/accused that, pure quantity of codeine in the mixture is
required to be considered for considering the quantity of the contraband
recovered.
7.

Considering the percentage of Codeine Phosphate in the
recovered bottles and entry number 28 in the notification issued by the
Central Government there appear no substance in the contention of
applicant/accused that Codeine Phosphate is exempted from the
purview of narcotic drugs or psychotropic substance. From the
appreciation of the material on record it appears that, the quantity of
contraband recovered from the applicant/accused is commercial
quantity. 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.
8.

In view of mandate of section 37 of the NDPS Act the
burden is upon the accused to show that, there are reasonable grounds
to believe that, he is not guilty of the offence alleged. However, the
applicant/accused has not demonstrated any reasonable grounds to
believe that, he has not committed the offence alleged. From the
appreciation of the material on record there are reasonable grounds to
believe that, applicant/accused has committed the offence punishable
under section 8(c) r/w section 22(c) of NDPS Act. Moreover,
considering the nature of offence and the matter on record and the fact
NDPS BA NO.735/2023
that,
huge
..6..

quantity
of
contraband
in NDPS RA No.623/2023
was
recovered
from
the
applicant/accused court is also not satisfied that, the applicant/accused
will not commit the similar offence again. As such conditions under
section 37 of NDPS Act are not fulfilled and therefore, embargo put by
section 37 of NDPS act is not lifted.
9.

The facts of the present case and judgments cited supra
relied by the applicant/accused are in the humble opinion of this court
are different.
10.

In the present matter till date investigation is not
completed. Release of the applicant/accused may hamper the further
investigation. Prima facie there is no material on record, so as to doubt
genuineness of the prosecution case. Prima facie there appear no
inherent
infirmities
or
improbability
in
the
prosecution
case.

Considering the nature of offence the possibility that, after release of
the
applicant/accused,
the
applicant/accused
may
tamper
the
prosecution evidence or influence the witnesses or may involve in
commission of such offences cannot be ruled out at this stage.
Therefore, at this stage there appear necessity for the further detention
of the applicant/accused.
11.

Considering the above facts and discussion and prima facie
appreciation of the material on record release of the applicant/accused
at this stage is likely to be prejudicial to the interest of the society at
large. Liberal approach in grant of bail in such kind of offences under
NDPS Act is also uncalled.

NDPS BA NO.735/2023
12.

..7..

in NDPS RA No.623/2023
On prima facie appreciation of the material on record and
considering the nature of the offence, gravity of the offence there
appear no justifiable grounds for releasing applicant/accused on bail at
this stage.

As such the present application is liable to be rejected.

Hence, the following order.
ORDER
1.

NDPS Bail Application No.735/2023 of applicant/accused
Mohammad Bilal Musa Shaikh in Spl. LAC/C.R. No.63/2023 in
NDPS RA No.623/2023, is rejected.

2.

NDPS Bail Application No.735/2023 is disposed of accordingly.
(Pronounced in open Court)
KIRAN
PRAKASH
KSHIRSAGAR
Date : 14/09/2023.

Digitally signed
by KIRAN
PRAKASH
KSHIRSAGAR
Date: 2023.09.18
15:08:30 +0530
(K.P. Kshirsagar)
N.D.P.S Special Judge
City Civil & Sessions Court,
Gr. Bombay (CR.43)
Dictated on
:
14/09/2023
Transcribed on
:
15/09/2023
Checked on
:
16/09/2023
Signed on
:
18/09/2023
NDPS BA NO.735/2023
..8..

in NDPS RA No.623/2023
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE
18.09.2023
TIME
NAME OF STENOGRAPHER
03.00 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.

14/09/2023
Judgment/order signed by P.O
on
18/09/2023
Judgment/order uploaded on
18/09/2023