NDPS BA No.822/2023
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in NDPS RA No.1108/2023
MHCC020141572023
Presented on
: 18-09-2023
Registered on : 18-09-2023
Decided on
: 30-10-2023
Duration
: 01 M, 20 Days
IN THE SPECIAL COURT FOR NARCOTIC DRUG AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
NDPS BAIL APPLICATION NO.822 OF 2023
IN
NDPS REMAND APPLICATION NO.1108 OF 2023
Mohd. Ubed Mohd. Kayyum Khan @
Mehamood @ Mohd. Ubaid Khan
Aged : 54 years, Occ:
R/at : Sanjay Nagar, Bainganwadi, Near
Haqqani Masjid, Road No. 8, Govandii,
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.636/2023).

)
)
)
) .. Respondent/Prosecutor
Appearance :
Ld. Adv. Mr. Kamath, for the applicant/accused.
Ld. APP Mr. Rajput, for the respondent/prosecution.

NDPS BA No.822/2023
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in NDPS RA No.1108/2023
CORAM : K.P. KSHIRSAGAR
ADDL. SESSIONS JUDGE (C.R.43)
DATE
: 30/10/2023
ORAL ORDER
This is an application taken out by applicant/accused
Mohd. Ubed Mohd. Kayyum Khan @ Mehamood @ Mohd. Ubaid Khan
under section 439 of Code of Criminal Procedure for enlarging him on
bail in Spl. LAC/C.R. No.636/2023 registered at Shivaji Nagar police
station, 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, say of
the learned APP and material on record. Heard, arguments advanced by
learned Advocate for 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 and
no other bail application of the applicant/accused is pending in any
higher Court in respect of the above Spl. LAC/C.R. No.636/2023.
Learned Advocate for applicant/accused argued that, as per prosecution
case on 20/07/2023, 12 bottles of 100 ml each containing
Chlorpheniramine Maleate & Codeine Phosphate syrup PHENSIREST
were recovered from the co-accused No.1 Shams Tabrej Mehboob
Badshah Sayyed. Co-accused Shams Tabrej Mehboob Badshah Sayyed
during investigation revealed that, he had procured the said contraband
from the co-accused No.2 Wahid Abdul Sattar Shaikh @ Gany. Further
investigation revealed that, the co-accused No.2 Wahid Abdul Sattar
NDPS BA No.822/2023
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in NDPS RA No.1108/2023
Shaikh @ Gany used to procure the said contraband from the coaccused No.3 Abbas Motha and co-accuse No.3 Abbas Motha disclosed
name of applicant/accused and other co-accused. Therefore, co-accused
and applicant/accused was apprehended and offence punishable under
section 8(c) r/w section 22(c) and section 29 of NDPS Act is registered
against the co-accused and applicant/accused. Nothing is recovered
from the applicant/accused. Applicant/accused used to work on daily
wages. There is no positive evidence to indicate nexus between the
applicant/accused and the co-accused in the present crime. The
applicant/accused is not having any criminal antecedents. Rigours of
section 37 of NDPS Act are not applicable. 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 released on bail.
4.

On the other hand, Ld. APP argued that, 12 bottles of 100
ml each containing Chlorpheniramine Maleate & Codeine Phosphate
syrup PHENSIREST were recovered from the co-accused No.1 Shams
Tabrej Mehboob Badshah Sayyed and during investigation he revealed
that, he had procured the said contraband from the co-accused No.2
Wahid Abdul Sattar Shaikh @ Gany. Further investigation revealed that,
the co-accused No.2 Wahid Abdul Sattar Shaikh @ Gany used to
procure the said contraband from the co-accused No.3 Abbas Motha and
co-accused No.3 Abbas Motha disclosed name of applicant/accused and
other accused. There is positive evidence/material on record which
indicates nexus/link between the applicant/accused and co-accused.
Therefore, section 29 of the NDPS Act is applicable. Moreover, quantity
of contraband recovered from the co-accused No.1 Shams Tabrej
Mehboob Badshah Sayyed is commercial quantity. Therefore, rigours of
NDPS BA No.822/2023
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in NDPS RA No.1108/2023
section 37 of the NDPS Act are also applicable. Investigation is pending.
Release of the applicant/accused at this stage may hamper the
investigation. Applicant/accused has not 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
that,
applicant/accused is alleged to have committed offence punishable
under section 8(c) r/w section 22(c) and section 29 of NDPS Act, 1985.
The quantity of contraband recovered in the crime is commercial
quantity. From appreciation of the material on record prima facie there
appear involvement of the applicant/accused in present crime and there
appear positive material to indicate nexus between applicant/accused
and co-accused and wanted accused. So there appear no substance in
the contention of the applicant/accused that, there is no positive
material on record to show that, applicant/accused, co-accused and
wanted accused have no any nexus and they had not hatched any
conspiracy. Therefore, section 29 of NDPS Act is applicable to the case
of applicant/accused.
6.

The quantity recovered in present crime is commercial
quantity. Therefore, rigours of section 37 of NDPS Act are applicable. As
per mandate of section 37 of NDPS Act burden to show that there are
reasonable grounds to believe that applicant/accused is not guilty of
offence is upon applicant/accused. However, applicant/accused did not
demonstrate that there are grounds to believe that he is not guilty of
offence alleged. Moreover, considering the nature of offence and the
matter on record and the fact that, huge quantity of contraband was
recovered from the co-accused court is also not satisfied that, the
NDPS BA No.822/2023
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in NDPS RA No.1108/2023
applicant/accused will not commit the similar offence again. As such
conditions under section 37 of NDPS Act are not fulfilled. Therefore,
embargo put by section 37 of NDPS act is not lifted.
7.

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 witnesses or influence
the witnesses or may involve in commission of such offences cannot be
ruled out at this stage. Moreover, considering the quantity of the
contraband seized and the facts of the case free, fair and full
investigation of the present crime is likely to be prejudiced and
investigation is likely to be hampered if the applicant/accused is
released at this stage. Therefore, at this stage there appear necessity for
the further detention of the applicant/accused for facilitating further
investigation.
8.

Moreover, from the accusations against applicant/accused
and prima facie appreciation of the material on record it appears that,
the applicant/accused has played active role. The offence alleged to be
committed by the applicant/accused is of heinous nature. Investigation
carried out till date suggest that, applicant/accused is involved in the
drug peddling and having nexus with the wanted accused. At this stage
high degree of evidence is also not required to establish the conspiracy.
At this stage prima facie applicant/accused also failed to demonstrate
that, he is not involved in the crime.

NDPS BA No.822/2023
9.

..6..

in NDPS RA No.1108/2023
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 and fact
that, investigation is yet to be completed 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.822/2023 of applicant/accused Mohd. Ubed Mohd.
Kayyum Khan @ Mehamood @ Mohd. Ubaid Khan in Spl.
LAC/C.R. No.636/2023 in NDPS RA No.1108/2023, is rejected.

2.

NDPS Bail Application No.822/2023 is disposed of accordingly.
(Pronounced in open Court)
KIRAN
PRAKASH
KSHIRSAGAR
Date : 30/10/2023.

Digitally signed
by KIRAN
PRAKASH
KSHIRSAGAR
Date: 2023.10.31
16:26:21 +0530
(K.P. Kshirsagar)
N.D.P.S Special Judge
City Civil & Sessions Court,
Gr. Bombay (CR.43)
Dictated on
:
30/10/2023
Transcribed on
:
30/10/2023
Checked on
:
30/10/2023
Signed on
:
31/10/2023
NDPS BA No.822/2023
..7..

in NDPS RA No.1108/2023
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE
31.10.2023
TIME
NAME OF STENOGRAPHER
04.23 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.

30/10/2023
Judgment/order signed by P.O
on
31/10/2023
Judgment/order uploaded on
31/10/2023