BA 926/2023
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MHCC020156902023
IN THE COURT OF THE SPECIAL JUDGE FOR N.D.P.S. CASES
AT GREATER MUMBAI
BAIL APPLICATION NO. 926 OF 2023
IN
LAC NO. 335/2023
Moin Riyaz Khan
Age : 20 years, Occu. : Business,
R/o : New Bhim Nagar Transist Camp,
Shamshan Bhumi, Govandi,
Mumbai – 400 043.
… Applicant/accused
V/s.
State of Maharashtra
(Deonar Police Station)
… Respondent
Appearance :Mr. Subhash Kewat, Adv. for the applicant.
Mr. Shankar Erande, APP for the respondent/State.
CORAM :
H.H. THE SPECIAL JUDGE
SHRI R. R. BHAGWAT (C.R.44)
DATE :
09.11.2023
ORDER
This is an application filed by applicant – Moin Riyaz Khan
for grant of bail under Section 439 of Code of Criminal Procedure,
1860 in LAC No.335/23 registered at Deonar Police Station for offence
punishable under sections 8(c) r/w sec.22 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (For short, “the NDPS Act”). Perused
bail application and say filed by the Investigating Officer through
learned A.P.P.

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2.

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Heard learned Counsel Mr. Subhash Kewat for the applicant
and learned A.P.P. Mr. Shankar Erande for the respondent/State.
3.

It is the case of prosecution that informant Shahaji Chachar
along with PC Patil, PSI Taide and PC Chavan were discharging
patrolling duty within jurisdiction of Deonar Police Station at about
20.30 hours on 29.08.2023.

When they reached to Transcit Camp,
Bengan Wadi, Govandi, Mumbai, they noticed accused Moin Riyaz Khan
with a white colour bag in his right hand. As his movements were
suspicious, night PI Anagha Satvase was informed on telephone and she
rushed to the spot at 20.50 hours.

Then, necessary procedure was
followed in presence of two panchas and search of the said bag was
conducted. It resulted into recovery of 43 Federex cough syrup bottles
of 100 ml. each containing Chlorpheniramine Maleate & Codeine
Phosphate Syrup. Subsequently, all these 43 bottles were seized under
panchanama and arrest of the applicant was effected after registration
of the offence.
4.

The applicant is seeking bail on the grounds that the
applicant isfalsely implicated in the present case as from the FIR it clear
that the complainant has lodged the FIR after thought and concocted
story against the applicant. The applicant is arrested from his house
and hence recovery which is shown at the instance of the applicant is
nothing but a planted recovery. Sec. 50 of the NDPS Act is not complied
with. The applicant is in custody for more than one month.
Investigation has been completed. The applicant is no criminal
antecedents. He is permanent resident of Mumbai. No fruitful purpose
will be served by keeping the applicant behind bar. The applicant is
ready and willing to abide by all conditions imposed by this Court. He
prayed for bail.

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Ld. Adv. Mr. Subhash Kewat for the applicant submitted that
this is case of patrolling duty. The applicant is apprehended on the spot.
Names and addresses of panchas are not mentioned in FIR. No recovery is
made before independent witnesses. The spot of incident is a public place.
Nothing is found in personal search.

Sec. 50 of the NDPS Act is not
complied with. Recovery of cough syrup bottles is planted. Sec. 157 of the
Cr.P.C. is not complied with.

Bar u/sec. 37 of the NDPS Act is not
applicable. The applicant is of 20 years young person and he does not have
criminal antecedents. The applicant is resident of Mumbai. He prayed for
granting bail to the applicant.
6.

Ld. APP Shankar Erande for the State submitted that this is
case of patrolling duty. Two panchas were called after apprehending
the applicant.

Total 43 cough syrup bottles containing codeine
phosphate are seized. Weight of cough syrup is 14 kg. and it is
commercial quantity. He referred entry no.239 in the Notification dated
19.10.2001 to state that mixture of contraband is
required to be
considered while determining quantity of contraband. He also relied
upon observations of Hon’ble Supreme Court in the case of Hira Singh
& Another v/s. Union of India and another (2020) 20 SCC 272. The
applicant was not having any license or receipt to possess 43 bottles of
contraband. Offence is serious. Wanted accused is not apprehended. He
prayed for rejection of the bail application.
7.

On perusal of the record, it appears that the accused was
found in possession of 43 bottles of cough syrup containing Codeine
Phosphate. Each bottle was containing 100 ml. Cough syrup. It means
that total cough syrup was 4300 ml. Therefore, weight of seized cough
syrup solution was certainly above 1 kg.

If entry no. 239
in the
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Notification dated 29.10.2021 is considered, mixture or solution of the
contraband is required to be considered for determining quantity of
contraband. Similarly, it is observed in para 10.4 and 12.2 in the case
of Hira Singh (supra) as under :
“10.4. Even considering the definition of “manufacture”,
“manufactured drug” and the “preparation” conjointly, the
total weight of such “manufactured drug” or “preparation”,
including the neutral material is required to be considered
while determining small quantity or commercial quantity. If it
is interpreted in such a manner, then and then only, the objects
and purpose of the NDPS Act would be achieved. Any other
intention to defeat the object and purpose of enactment of the
NDPS Act viz. to the Act is deterrent.
12.2. In case of seizure of mixture of narcotic drugs or
psychotropic
substances
with
one
or
more
neutral
substance(s), the quantity of neutral substance(s) is not to be
excluded and to be taken into consideration along with actual
content by weight of the offending drug, while determining
the “small or commercial quantity” of the narcotic drugs or
psychotropic substances.”
8.

In the light of above discussion, seized contraband is
commercial quantity. Bar u/sec. 37 of the NDPS Act is attracted.
Considering seizure of commercial quantity of contraband from the
accused, the applicant is not entitled to bail. Investigation is at initial
stage. Bail to the accused would affect further investigation. Gravity of
offence and prescribed punishment are additional factors making this
Court to deny bail to the applicant. Hence, I pass the following order.

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ORDER
1. Bail Application No. 926/2023 stands rejected.
2. Application is disposed off accordingly.

Date : 09.11.2023
(R. R. BHAGWAT)
Special Judge (N.D.P.S.),
City Civil & Sessions Court,
Gr. Bombay (C.R. NO.44)
Dictated on
: 09.11.2023
Transcribed on : 10.11.2023
Signed on
: 10.11.2023
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE
10.11.2023
TIME
NAME OF STENOGRAPHER
04.45 p.m.

Mrs. S. W. Tuscano
Name of the Judge
HHJ Shri R. R. Bhagwat
(CR No.44)
Date of Pronouncement of
Judgment/Order.
Judgment/order signed by P.O on
09.11.2023
Judgment/order uploaded on
10.11.2023
10.11.2023
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