NDPS BA No.1072/2023
..1.. in NDPS RA No.1407/2023
MHCC020186382023
Presented on
: 12-12-2023
Registered on : 12-12-2023
Decided on
: 17-02-2024
Duration
: 02 M, 05 Days
IN THE SPECIAL COURT FOR NARCOTIC DRUG AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
NDPS BAIL APPLICATION NO.1072 OF 2023
IN
NDPS REMAND APPLICATION NO.1407 OF 2023
Mohammad Munna Mustaq Shaikh @
Malik
Aged : – years, Occ: R/at : Room No.306, Building No. 1/A,
3rd Floor, PMGP Colony, Dharavi Bus
Depo, Behind, Kala Killa Road, Dharavi,
Mumbai – 17.

)
)
)
)
)
)
) .. Applicant/accused
V/s.
The State of Maharashtra
)
(At the instance of ANC Bandra Unit, )
Mumbai vide C.R. No.91/2023).
) .. Respondent/Prosecutor
Appearance :
Ld. Adv. Mr. Divya Gupta, for applicant/accused.
Ld. APP Mr. Rajput, for the respondent/prosecution.
CORAM : K.P. KSHIRSAGAR
ADDL. SESSIONS JUDGE (C.R.43)
NDPS BA No.1072/2023
..2.. in NDPS RA No.1407/2023
DATE
: 17/02/2024
ORAL ORDER
This is an application taken out by applicant/accused
Mohammad Munna Mustaq Shaikh @ Malik under section 439 of Code
of Criminal Procedure for enlarging him on bail in C.R. No.91/2023
registered at ANC Bandra Unit, Mumbai for the offences punishable
under section 8(c) r/w section 22(c) and section 29 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
learned Advocate for applicant/accused and learned APP.
3.

Learned Advocate for applicant/accused argued that, this is
the first bail application taken out by the applicant/accused and no
other bail application of the applicant/accused is pending in any higher
Court in respect of the above crime or rejected by Higher Court. Ld.
Advocate for the applicant/accused argued that, as per the prosecution
case it is alleged that, on 02/11/2023 on the basis of the prior
information 30 gram Mephedrone (MD) was recovered from the
conscious possession of the applicant/accused. During investigation the
applicant/accused disclosed that, he had procured the said contraband
from the co-accused No.2 Alsaud Farooq Shaikh @ Malik and therefore,
co-accused No.2 was apprehended and 25 gram Mephedrone (MD) is
recovered from the possession of the co-accused No.2. Therefore,
offence punishable under section 8(c) r/w section 22(c) and section 29
of the NDPS Act is registered against the applicant/accused. The
applicant/accused is falsely implicated in the present case. There is no
NDPS BA No.1072/2023
..3.. in NDPS RA No.1407/2023
positive material on record to connect the applicant/accused with the
present crime or co-accused No.2. Applicant/accused is resident of
Mumbai and he is ready to abide by all terms and conditions which the
court may impose. Therefore, Ld. Advocate for the applicant/accused
prayed that, applicant/accused be released on bail.
4.

On the other hand, Ld. APP argued that, on the basis of the
specific information the applicant/accused was apprehended at his
home and 30 gram Mephedrone (MD) was recovered from his conscious
possession. Applicant/accused disclosed that, he had procured the said
contraband from the co-accused No.2 Alsaud Farooq Shaikh @ Malik
and therefore, co-accused No.2 was apprehended and 25 gram
Mephedrone (MD) is recovered from his conscious possession.
Cumulative commercial quantity of contraband is recovered in the
present crime. As the applicant/accused used to procure the contraband
from
the
co-accused
No.2
there
appear
nexus
between
the
applicant/accused and the co-accused. Wanted accused is yet to be
arrested. Investigation is pending. Considering the fact that, cumulative
commercial quantity is recovered in the present crime rigours of section
37 of the NDPS Act are applicable to the present case. Release of the
applicant/accused at this stage may hamper further investigation.
Therefore, Ld. APP submitted that, application be rejected.
5.

The applicant/accused is alleged to have committed offence
punishable 8(c) r/w section 22(c) and section 29 of the NDPS Act. 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
NDPS BA No.1072/2023
..4.. in NDPS RA No.1407/2023
cumulative commercial quantity of contraband is recovered from the
possession of the applicant/accused and co-accused No.2 and nature of
offence rigors of section 37 of NDPS Act are applicable to present
matter.
6.

As per section 37(2) of NDPS Act limitations on grant of
bail specified in clause (b) of sub section (1) of section 37 of NDPS Act
are in addition to the limitations under the Code of Criminal Procedure
or any other law for the time being in force on granting of bail. To check
the menance of drugs flooding the market and in order to effectively
control and eradicate menance of drug legislature has incorporated
above limitations. The above limitations are in public interest.
Therefore, for exercise of discretion for grant of bail twin conditions
under clause (b) of sub section (1) of NDPS Act must be satisfied. Detail
examination of evidence on record is not necessary while considering
the bail application. Negation of bail is rule and grant of bail is
exception under above clause.
7.
there
From prima facie appreciation of the material on record
appear
positive
material
to
indicate
nexus
between
applicant/accused and co-accused. Therefore, provision of section 29 of
the NDPS Act appears to be applicable to the case of the
applicant/accused. Prima facie there appear no material infirmities in
the prosecution case. 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
NDPS BA No.1072/2023
..5.. in NDPS RA No.1407/2023
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
that, cumulative commercial quantity of contraband was recovered from
the applicant/accused and co-accused No.2 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.
8.

Admittedly, till date investigation is not completed. 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.
9.

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.
10.

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
NDPS BA No.1072/2023
this stage.

..6.. in NDPS RA No.1407/2023
As such the present application is liable to be rejected.

Hence, the following order.
ORDER
1.

NDPS BA No.1072/2023 of applicant/accused Mohammad
Munna Mustaq Shaikh @ Malik in C.R. No.91/2023 in NDPS RA
No.1407/2023, is rejected.

2.

NDPS BA No.1072/2023 is disposed of accordingly.
(Pronounced in open Court)
Date : 17/02/2024.

(K.P. Kshirsagar)
N.D.P.S Special Judge
City Civil & Sessions Court,
Gr. Bombay (CR.43)
Dictated on
:
17/02/2024
Transcribed on
:
17/02/2024
Checked on
:
20/02/2024
Signed on
:
21/02/2024
NDPS BA No.1072/2023
..7.. in NDPS RA No.1407/2023
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE
21.02.2024
TIME
NAME OF STENOGRAPHER
05.50 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.

17/02/2024
Judgment/order signed by P.O on 21/02/2024
Judgment/order uploaded on
21/02/2024