NDPS BA No.1050/2023
..1.. in NDPS RA No.1475/2023
MHCC020180822023
Presented on
: 02-12-2023
Registered on : 02-12-2023
Decided on
: 04-01-2024
Duration
: 01 M, 02 Days
IN THE SPECIAL COURT FOR NARCOTIC DRUG AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
NDPS BAIL APPLICATION NO.1050 OF 2023
IN
NDPS REMAND APPLICATION NO.1475 OF 2023
Nahid Ashraf Memon
)
Aged : 27 years, Occ: )
R/at : Hussainpura, Harnai, Tal. Dapoli, )
Dist. Ratnagiri 415713.
) .. Applicant/Accused
V/s.
The State of Maharashtra
)
(At the instance of Pydhonie police )
station,
Mumbai,
vide
C.R. )
No.129/2023).
) .. Respondent/Prosecutor
Appearance :
Ld. Adv. Mr. Mohit Davli, for applicant/accused.
Ld. APP Mr. Tarange, for the respondent/prosecution.

NDPS BA No.1050/2023
..2.. in NDPS RA No.1475/2023
CORAM : K.P. KSHIRSAGAR
ADDL. SESSIONS JUDGE (C.R.43)
DATE
: 04/01/2024
ORAL ORDER
This is an application taken out by applicant/accused Nahid
Ashraf Memon under section 439 of Code of Criminal Procedure for
enlarging him on bail in C.R. No.129/2023 registered at Pydhonie
police station, Mumbai for the offences punishable under section 8(c)
r/w section 20(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 C.R. No.129/2023. Ld. Advocate for the
applicant/accused argued that, as per the prosecution case on
04/11/2023 co-accused Arafat Iqbal Kazi and Shahrukh Mohammad
Tambu were apprehended and 1 Kg 40 gram Charas was recovered from
their possession. During investigation as per information given by the
co-accused Arafat Iqbal Kazi and Shahrukh Mohammad Tambu coaccused Faizalali Mohamed Ali Memon was arrested and he disclosed
that,
he
had
procured
the
above
contraband
from
the
applicant/accused. Therefore, offence punishable under section 8(c)
r/w section 20(c) and section 29 of the NDPS Act is registered against
NDPS BA No.1050/2023
..3.. in NDPS RA No.1475/2023
the applicant/accused. Applicant/accused is falsely implicated in the
present case. Name of the applicant/accused is Nahid and not Naid and
applicant/accused is resident of Harnai and not Chiplun. There is no
recovery from the applicant/accused. Applicant/accused is not having
any criminal antecedents. There is no material on record to connect the
applicant/accused with the co-accused. The statement of the co-accused
is not admissible in evidence. Applicant/accused is resident of Harnai,
Tal. Dapoli, Dist. Ratnagiri. 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, 1 Kg 15 gram
Charas was recovered from the possession of the co-accused Arafat
Iqbal Kazi and 25 gram Charas was recovered from the possession of
the co-accused No.2 Shahrukh Mohammad Tambu. During investigation
it revealed that, they procured same from the co-accused No.3 Faizalali
Mohamed Ali Memon. The co-accused No.3 Faizalali Mohamed Ali
Memon during investigation revealed that, he had procured same from
the applicant/accused. The statement of the co-accused is admissible at
the stage of investigation. There is positive material on record to
indicate nexus between applicant/accused and co-accused. Therefore,
prima facie section 29 of the NDPS Act is applicable to the case of the
applicant/accused. Commercial quantity of contraband is recovered
from the co-accused. Therefore, rigours of section 37 of the NDPS Act
are applicable to the case of the applicant/accused also. Investigation
relating to the applicant/accused is in progress and it is not completed.
If the applicant/accused is released at this stage it may hamper further
investigation. Moreover, applicant/accused failed to demonstrate that,
there are reasons to believe that, he is not guilty of the offence alleged
NDPS BA No.1050/2023
..4.. in NDPS RA No.1475/2023
to be committed by him. Therefore, conditions under section 37 of the
NDPS Act are also not satisfied by the applicant/accused. There are no
material infirmities in the prosecution case. Therefore, Ld. APP
submitted that, application be rejected.
5.

From appreciation of material on record it appears that,
quantity of contraband recovered from the co-accused No.1 Arafat Iqbal
Kazi is commercial quantity and cumulative quantity of contraband
recovered in the present crime is commercial quantity. The statement of
the co-accused is admissible for the purpose of investigation.
Investigation carried out till date shows the involvement of the
applicant/accused and reveals the nexus between applicant/accused
and co-accused. Therefore, prima facie case for offence punishable
under section 8(c) r/w section 20(c) and section 29 of the NDPS Act is
made out against the applicant/accused. From the appreciation of the
material on record it reveals that, 1015 gram Charas was recovered
from the conscious possession of the co-accused No.1 and 25 gram
Charas was recovered from the conscious possession of co-accused No.2
and during investigation co-accused revealed that, said contraband was
procured by him from the applicant/accused.

Statement of the co-
accused is admissible for the purpose of investigation. In the case of
conspiracy, conduct and/or communication between the conspirators as
evident from the matter on record is relevant under section 10 of the
Evidence Act to prove the factum of conspiracy. Moreover, once a prima
facie link is established between the applicant/accused and co-accused,
onus lies on the applicant/accused to rebut the presumption under the
NDPS Act. Merely because no contraband is recovered from the
applicant/accused is not sufficient ground to demonstrate that,
applicant/accused is not guilty of the offence for which he is alleged to
NDPS BA No.1050/2023
..5.. in NDPS RA No.1475/2023
have committed. Applicant/accused has not demonstrated any material
to rebut the presumption. Therefore, from prima facie appreciation of
the matter on record section 29 of the NDPS Act appears to be
applicable to the case of the applicant/accused.
6.

As per section 37 of the NDPS Act burden is upon the
applicant/accused to show that there are reasonable grounds to believe
that, he is not guilty of the offence and to satisfy the Court that
applicant/accused
is
not
likely
to
commit
similar
offence.

Applicant/accused has not demonstrated any material to show that
there are reasonable grounds to believe that applicant/accused is not
guilty of offence alleged to have been committed by him. 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 20(c) and section 29 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 coaccused 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.
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 evidence or influence
the witnesses or may involve in commission of such offences cannot be
NDPS BA No.1050/2023
..6.. in NDPS RA No.1475/2023
ruled out at this stage. Therefore, at this stage there appear necessity
for the further detention of the applicant/accused.
8.

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.
9.

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.1050/2023 of applicant/accused Nahid Ashraf
Memon in C.R. No.129/2023 in NDPS RA No.1475/2023, is
rejected.

2.

NDPS BA No.1050/2023 is disposed of accordingly.
(Pronounced in open Court)
Date : 04/01/2024.

(K.P. Kshirsagar)
N.D.P.S Special Judge
City Civil & Sessions Court,
Gr. Bombay (CR.43)
Dictated on
:
04/01/2024
Transcribed on
:
04/01/2024
Checked on
:
04/01/2024
Signed on
:
04/01/2024
NDPS BA No.1050/2023
..7.. in NDPS RA No.1475/2023
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE
04.01.2024
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.

04/01/2024
Judgment/order signed by P.O on 04/01/2024
Judgment/order uploaded on
04/01/2024