NDPS BA No.823/2023
..1..

in NDPS RA No.1052/2023
MHCC020141542023
Presented on
: 18-09-2023
Registered on : 18-09-2023
Decided on
: 22-11-2023
Duration
: 02 M, 04 Days
IN THE SPECIAL COURT FOR NARCOTIC DRUG AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
NDPS BAIL APPLICATION NO.823 OF 2023
IN
NDPS REMAND APPLICATION NO.1052 OF 2023
Mohd. Shahid Mohd. Anis Shaikh
Aged : 25 years, Occ: Driver
R/at : Nilkanteshwar Chawl, Annabhau
Sathe Nagar, Jijabai Bhosale Marg,
Mankhurd, Mumbai 400043.

)
)
)
)
) .. Applicant/accused
V/s.
The State of Maharashtra
(At the instance of Shivaji Nagar police
station, Mumbai, vide Spl. LAC/C.R.
No.692/2023)
)
)
)
) .. Respondent/Prosecutor
Appearance :
Ld. Adv. Mr. Kamath, for the applicant/accused.
Ld. APP Mr. Rajput, for the respondent/prosecution.

NDPS BA No.823/2023
..2..

in NDPS RA No.1052/2023
CORAM : K.P. KSHIRSAGAR
ADDL. SESSIONS JUDGE (C.R.43)
DATE
: 22/11/2023
ORAL ORDER
This is an application taken out by applicant/accused
Mohd. Shahid Mohd. Anis Shaikh under section 439 of Code of Criminal
Procedure for enlarging him on bail in Spl. LAC/C.R. No.692/2023
registered at Shivaji Nagar 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 the material on record. Heard, arguments advanced
by Ld. Advocate for the 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. 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.
Learned Advocate for applicant/accused argued that, as per the
prosecution
case,
on
07/08/2023
during
patrolling
the
applicant/accused was found in suspicious condition and he was
possessing motor scooter bearing registration No.MH-03-EC-0395.
Thereafter, as per direction of PI Tamboli, Police Naik Wakshe had taken
search of the scooty in possession of the applicant/accused and in the
boot of the said vehicle found 31 bottles of Chlorpheniramine Maleate
& Codeine Phosphate syrup, PHENSIREST cough syrup of 100 ml each.

NDPS BA No.823/2023
..3..

in NDPS RA No.1052/2023
Therefore, the applicant/accused was arrested on 07/08/2023 and the
offence punishable under section 8(c) r/w section 22(c) of the NDPS
Act was registered against the applicant/accused. From the documents
it reveals that, the search of the vehicle was taken by the Police Naik
Wakshe, who was not authorized to conduct the search. Therefore, the
search of the vehicle is vitiated. Therefore, there are reasonable grounds
to believe that, applicant/accused is not guilty of offence alleged to
have been committed by him. Moreover, there is no material on record
to show that, the applicant/accused is owner and he was conscious
possession of the alleged motor scooter. PI Tamboli was present on the
spot and Crime No.692/2023 and Crime No.688/2023 at the same
time. All the above facts creates doubt about the prosecution case. The
applicant/accused is resident of Mumbai and he is is ready to abide all
conditions which the court may impose. Therefore, Ld. Advocate for the
applicant/accused prayed that, applicant/accused be released on bail.
Ld. Advocate for the applicant/accused kept his reliance on
the following citations.

No.1
Rakesh Hiloria @ Dhobi Vs. The State of
Maharashtra, in Criminal Bail Application
No.362/2019, dated 13/06/2019 of Hon’ble
Bombay High Court.

No.2
Kishore Bira Vs. State of Odisha, in BLAPL
No.9629/2021, dated 11/07/2022 of Hon’ble
Orissa at Cuttack High Court.

Court has gone through the observations made therein.
4.

On the other hand, Ld. APP argued that, commercial
quantity of contraband is recovered from the vehicle in possession of
the applicant/accused. The buckle number 040493 Shri. Wakshe was
NDPS BA No.823/2023
..4..

in NDPS RA No.1052/2023
promoted as Head Constable on 26/01/2023 itself. As per the
Notification issued by the Maharashtra Government “All Police Officers
of and above the rank of Head Constable in the State of Maharashtra
are authorised to take search of the person of the accused” . Therefore,
the search is conducted by the authorized officer. The possession of the
vehicle is important. Ownership of the vehicle is not relevant.
Considering the quantity of contraband recovered rigours of section 37
of
the
NDPS
Act
are
applicable.

Applicant/accused
has
not
demonstrated any material to show that there are grounds to believe
that applicant/accused is not guilty of offence alleged to have been
committed by him. 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 Ld. APP
submitted that application be rejected.
5.

The applicant/accused is alleged to have committed offence
punishable under section 8(c) r/w section 22(c) 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
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.
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
NDPS BA No.823/2023
..5..

in NDPS RA No.1052/2023
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.

From the appreciation of the material on record it appears
that, as per the instruction of the PI Tamboli, Head Constable Wakshe
had taken the search of the vehicle which was found in the possession
of the applicant/accused and during the search of the vehicle 31 bottles
of Chlorpheniramine Maleate & Codeine Phosphate syrup, PHENSIREST
cough syrup of 100 ml each were recovered. It is admitted fact that, as
per the Notification issued by the Maharashtra Government in exercise
of the powers conferred by sub-section (2) of section 41 of the NDPS
Act, 1985, “All Police Officers of and above the rank of Head Constable
in the State of Maharashtra are authorised to take search of the person
of the accused”. Therefore, in the present case Head Constable Wakshe
who searched the vehicle in possession of the applicant/accused as per
direction of the Police Inspector Tamboli was empowered officer and the
search appears to be valid search. Therefore, from the appreciation of
the material on record there appear no substance in the contention of
the applicant/accused that, in the present case search of the
applicant/accused was conducted by the unempowered officer and
therefore, entire search is vitiated. Moreover, the respondent in
additional reply have explained that, the spot of incident in Crime
No.688/2023 was at the distance of 550 meters and there was no
NDPS BA No.823/2023
..6..

in NDPS RA No.1052/2023
recovery in the said crime and therefore, there appear no substance in
the contention of the applicant/accused that, PI Tamboli’s presence at
the time of search is doubtful and there are material infirmities in the
prosecution case.
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
that, huge quantity of contraband was recovered from vehicle in
possession of 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.

In the present case investigation is pending. Released of the
applicant/accused may hamper the 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.

NDPS BA No.823/2023
..7..

in NDPS RA No.1052/2023
Therefore, at this stage there appear necessity for the further detention
of the applicant/accused.
10.

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.
11.

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 BA No.823/2023 of applicant/accused Mohd. Shahid
Mohd. Anis Shaikh in Spl. LAC/C.R. No.692/2023 in NDPS RA
No.1052/2020, is rejected.

2.

NDPS BA No.823/2023 is disposed of accordingly.
(Pronounced in open Court)
KIRAN
PRAKASH
KSHIRSAGAR
Date : 22/11/2023.

Digitally signed
by KIRAN
PRAKASH
KSHIRSAGAR
Date: 2023.11.29
11:29:55 +0530
(K.P. Kshirsagar)
N.D.P.S Special Judge
City Civil & Sessions Court,
Gr. Bombay (CR.43)
Dictated on
:
22/11/2023
Transcribed on
:
22/11/2023
Checked on
:
22/11/2023
Signed on
:
23/11/2023
NDPS BA No.823/2023
..8..

in NDPS RA No.1052/2023
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE
29.11.2023
TIME
NAME OF STENOGRAPHER
11.28 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.

22/11/2023
Judgment/order signed by P.O on 23/11/2023
Judgment/order uploaded on
29/11/2023