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BA 826/18
IN THE COURT OF SPECIAL JUDGE FOR N.D.P.S CASES FOR
GREATER BOMBAY AT MUMBAI
CRIMINAL BAIL APPLICATION NO.826/2018
IN
N.D.P.S. R.A. No. 1106/2018
1. Musavvar Miskil Khan
2. Imran Javed Shaikh
..Applicants/Accd.Nos.3&5.

V/s.
The State of Maharashtra,
(at the instance of ANC, Ghatkopar
Unit, Mumbai, C.R.53/18)
…Respondents
Appearances:­
Ld. Advocate Ms.Suvidha Patil for applicants/accused.
Ld. APP Mr. P.S Tawade for Respondent/State.
Coram :H.H.J The Special Judge (NDPS)
Shri. V.V. Vidwans (CR No.42).
Date : 30.11.2018.
ORAL ORDER
1.

This is an application for grant of regular bail u/s. 439 of
Cr.P.C filed on behalf of applicants/ accused nos.3 and 5. Say of I.O
and Ld. APP for the State was called and it is submitted on record. Seen
and considered the say.
2.

I have heard oral submissions of Ld. Adv. Ms. Suvidha Patil
for the accused and Ld. APP Mr. Tawade for the State.
3.

It is submitted on behalf of the applicants/ accused that,
they were arrested by ANC Ghatkopar Unit on 6.11.2018 in a trap laid
on the basis of specific information received by police for allegedly
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BA 826/18
committing offences punishable u/s. 8(c) r/w.20,22, and 20 of NDPS
Act. During the search, 2 kgs and 400 grams Ganja was recovered from
the possession of accused no.1; 70 bottles of Maxcoff­ T syrup were
recovered from the possession of accused no.2; 70 bottles of Maxcoff­ T
syrup were recovered from the possession of the accused no.3
(applicant); 65 bottles of Maxoff­ T syrup were recovered from the
possession of accused no.4; 40 bottles of Rexcan new 100 ml syrup
were recovered from the possession of accused no.5 (applicant) and 60
bottles of Rexus cough syrup were recovered from the possession of
accused no.6.
4.

It
is
further
submitted
that,
as
per
panchanama,
prosecution case is that, there is prima facie evidence against the
accused for indulging in criminal conspiracy for committing these
alleged offences and as per say of the prosecution, investigation is at a
preliminary stage and the accused are habitual offenders and if released
on bail, they are likely to repeat the similar offences in future also.
Hence, bail application is opposed.
5s.

Ld. Counsel for the accused has specifically argued that, the
quantity of the seized contraband is not a commercial quantity and
quantity of the alleged contraband recovered from each of the accused
will have to be taken into consideration separately at the stage of
deciding the bail application. Therefore, in the present case, stringent
provisions of Sec.37 of NDPS Act are not applicable and in view of
authority of Hon’ble Bombay High Court reported in the case of
Sangeeta Y.

Gaikwad V/s. State of Maharashtra (Criminal
Application No.2597/2006 decided on 3.8.2006), the accused are
entitled to be released on bail.

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6.

BA 826/18
Regarding the allegations of criminal conspiracy and
allegations that they are habitual offenders, Ld. Counsel for the accused
submitted that merely because cases are pending against the accused
under NDPS Act, 1985 vide C.R. No.21/18, it cannot be said that the
accused are habitual offender. In this regard, reliance was placed on the
decisions of the Hon’ble Apex Court and Hon’ble High Courts reported
in the following cases:­
1.

Bunty
Shankarlal
Chugh
V/s.

State
of
Maharashtra (Writ Petition No. 717 of 2010)
decided on 21st June, 2010.
2.

Ramrup
Bhagwandas
Gupta
V/s.

State
of
Maharashtra (Cr. Appln. No. 706 of 2006)
decided on 6.3.2006.
3.

Raosaheb Patole V/s. The State of Maharashtra
(Cri. Bail Appln. No. 373 of 2011),
4.

Virendra Tiwari V/s. The State of Madhya
Pradesh (MCRC – 8210­2015) decided on 19
June 2015),
5.

Binod Kumar @ Binod Kumar Bhagat V/s. The
State of Bihar (Cri. Appeal No. 1383 of 2017)
decided on 10.8.2017,
6.

Halima
Sadiq
Syed
V/s.

The
State
of
Maharashtra (Cri. Bail Appln. No. 803 of 2014)
decided on 23rd July, 2014),
7.

I have gone through the above authorities and find that, in
the similar circumstances, Hon’ble Apex Court and Hon’ble High Courts
have granted bail to the accused subject to conditions.

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8.

BA 826/18
The above submission made on behalf of the accused are
strongly opposed by the Ld. APP for the State. He has placed reliance on
the say and submitted that, there is prima facie case against the accused
and entire quantity of the seized contraband will have to be taken
together while deciding the bail application and to find out whether it is
commercial quantity or not. Investigation is at a preliminary stage and
if the accused are released on bail they are likely to create hurdle in the
investigation. Under the circumstance, the accused are not liable to be
released on bail.
9.

I have gone through the grounds of bail application and
taken into consideration oral submissions made by Ld. Counsels for
both sides. It is clear from the facts and circumstances of the case that,
if individual quantity of the seized contraband, which are recovered
from the possession of the accused, are taken into consideration, same
is non­commercial quantity.

In this respect, Ld. Counsel for the
applicant has placed reliance on the Central Government Gazette
Notification bearing No.S.O. 1181(E) dated 5.5.2015. In the said
notification, Methyl morphine (commonly known as ‘Codeine’) and Ethyl
morphine and their salts (including Dionine), all dilutions and
preparations except those which are compounded with one or more other
ingredients and containing not more than 100 miligrammes of the drug
per dosage unit and with a concentration of not more than 2.5% in
undivided preparations and which have been established in therapcutic
practice; has been notified for medical and and scientific use.
10.

On the above background, if the authorities cited and relied
upon by Ld. Counsel for the applicants/ accused are taken into
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consideration, it can be seen that, in the case of Halima Sadiq Syed
V/s. The State of Maharashtra (supra), Hon’ble Bombay High Court
has granted bail to the accused, wherein she was allegedly found in
possession of 5 kgs Ganja, non­commercial quantity and therefore, it
was held that, stringent provisions of Sec.37 of the NDPS Act were not
attracted. Similarly, in the authority in the case of Bunty Shankarlal
Chugh V/s. State of Maharashtra (supra) Hon’ble Bombay High Court
has granted bail to the accused in a case involving offences u/s. 498­A
and 363 of IPC. It was held that, mere pendency of the case u/s. 111 of
Cr.P.C. for undertaking preventive action cannot be considered as
sufficient ground to prove that the accused is a habitual offender.
Similarly, reliance is placed by Ld. Counsel for the accused on the
decision of the Hon’ble Bombay High Court reported in the case of
Ramrup Bhagwandas Gupta V/s. State of Maharashtra (supra),
wherein the accused was charged for allegedly committing offences
punishable u/s. 379 and 414 r/w. 34 of IPC. In the said case, the
accused was shown to be involved in other 13 pending cases, but it was
held that same cannot be considered as sufficient ground to treat the
accused as habitual offender because matter was still pending and not
finally decided.
11.

Another contention was made by Ld Counsel for the
accused by placing reliance on the decision of Hon’ble Apex Court in the
case of Binod Kumar @ Binod Kumar Bhagat V/s. The State of Bihar
(supra) wherein the accused was charged for allegedly committing
offences punishable u/s. 272, 273/34 of IPC
r/w. Sec. 27(b)(ii),
28,36AC of Drugs & Cosmetics Act, 1940 and Sec. 22(C) of the Narcotic
Drugs & Psychotropic Substance Act ,1985. As per prosecution case,
4000 bottles of Corex cough syrup containing codeine were recovered
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BA 826/18
from his possession. As per facts of the said case, the accused was found
carrying bottles of Corex cough syrup as mentioned above instead of
drugs shown in the consignment note and the accused could not explain
about the possession of the said bottles of Corex cough syrup. Ld
Counsel for the accused had placed reliance on the Central Government
Notification dated 10.3.2016, wherein Govt. Notification issued u/s.26A
of the Drugs and Cosmetics Act, 1940 which had sought to prohibit the
manufacture, distribution and sale of 344 Fixed Dose of Combination
including Corex. But, it was argued that the said Govt. Notification was
not in accordance with law and had been quashed in W.P. No. 2213 of
2016 vide order passed by Delhi High Court, dated 01.12.2016.
12.

Similarly, reliance was placed by the Ld. Counsel for the
accused on the another decision of Madhya Pradesh High Court
reported in the case of Virendra Tiwari V/s. The State of Madhya
Pradesh (supra), wherein the accused was charged for committing
offences u/s. 8(c) r/w. 21 and 22 of the NDPS Act. In the said case, the
accused was found in possession of 37200 bottles of Phensedyl syrup
kept in 372 cartons. As per label on the bottles, it contained 100 ml
preparation with 10 mg Codeine Phosphate a salt of codeine which is
derivative of opium. It was contended on behalf of the accused that, the
drug was being transported under the valid bilty. Reliance was placed
on the Circular issued by Drugs Controller General India bearing letter
No. X­11029/27­D, dated 26.10.2005 and X­11029/09­D dated
1.3.2009 and Notification No. GSR 588(E) dated 30.8.2013 and letter
dated 15.10.2012 issued by the Pharmaceutical Company Abbott, the
manufacturer of the drug to its trade partners, and it was contended
that the said drug was not narcotic drug as the concentration of
Codeine Phosphate in it was mere 0.20% as compared to permissible
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BA 826/18
limit to 2.5%. Hence, the drugs comes within the limit of prescribed
under Schedule H­1 of the Drugs and Cosmetics Rules 1940.
Considering all these aspects, Hon’ble Madhya Pradesh High Court had
granted bail to the accused.
13.

In view of the above authorities, I am of the opinion that,
under similar circumstances, Hon’ble Apex Court and Hon’ble High
Courts have granted bail to the accused holding that apprehension of
prosecution can be taken care of by imposing suitable conditions and
therefore, bail was granted. On the same line of thinking, I am of the
view that, the purpose of the prosecution will be served in the present
case, if application for bail is allowed subject to stringent conditions.
Hence, I proceed to pass following order:­
ORDER
1.

Bail Application No.826 of 2018 is hereby allowed.

2.

Applicant/ accused no.3 Musavvar Miskil Khan and
applicant/ accused no.5 Imran Javed Shaikh shall be
released on their executing P.R.Bonds of Rs.50,000/­
(Rs. Fifty Thousand Only) each with one or two local
sureties each to the above extent.

3.

The applicants/accused nos.3 and 5 to attend the I.O
at
ANC
Ghatkopar
Unit
for
the
purpose
of
investigation once in a fortnight on 1 st and third
Saturday of the month between 11.00 am to 2.00 pm
till filing of the charge­sheet. If I.O is absent, then
they should give attendance to the PSO Incharge.

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4.

BA 826/18
The applicants/ accused nos.3 and 5 shall not tamper
with prosecution witnesses/evidence in any manner
and co­operate in the investigation.

5.

The applicants/accused nos.3 and 5 shall furnish
their cell/ landline numbers and also of their two
nearest relatives or their two friends each, preferably
residing in Mumbai.

6.

The applicants/accused nos.3 and 5 shall produce the
proof of their identity and proof of residence at
Mumbai at the time of executing the bail bonds.

7.

The applicants/ accused nos.3 and 5 shall not
commit similar offence while on bail.
In case of breach of any of the above conditions by
the applicants/accused nos.3 and 5, it would entail
cancellation of bail.
Bail
Appln.

No.826/18
stands
disposed
of
accordingly.

Date:­ 30.11.2018
Typed on : 30.11.2018, 4.12.2018
HHJ signed on: 4.12.2018
(V.V. Vidwans)
N.D.P.S Special Judge
City Civil & Sessions Court,
Gr. Bombay (CR 42).

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BA 826/18
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 4.12.2018
TIME: 12.45 pm
(NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.

Name of the judge (with Court Room No.)

Shri V.V. Vidwans, Spl. Judge & Addl. Sessions
Judge (C.R. 42)
Date of pronouncement of Judgment/ Order
30.11.18
Judgment/ order signed by P.O on
4.12.18
Judgment/ order uploaded on
4.12.18