BA 901/2023
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MHCC020153982023
IN THE COURT OF THE SPECIAL JUDGE FOR N.D.P.S. CASES
AT GREATER MUMBAI
BAIL APPLICATION NO. 901 OF 2023
IN
C. R. NO. 318/2023
Naved Jahangir Sayyed
Age : 19 years.
R/o : R. No.37, Agarwal wadi,
Near Noor Chotaya Maidan,
Antop Hill, Mumbai.

… Applicant/accused no.2
V/s.
State of Maharashtra
(Antop Hill Police Station)
… Respondent
Appearance :Mr. Taraq Sayed, 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 – Naved Jahangir
Sayyed for grant of bail under Section 439 of Code of Criminal
Procedure, 1860 in C. R. No.318/23 registered at Antop Hill Police
Station for offence punishable under sections 8(c) & 22(c) 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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Heard learned Counsel Mr. Taraq Sayed for the applicant and
learned A.P.P. Mr. Shankar Erande for the respondent/State.
3.

It is the case of prosecution that on 07.09.2023, informant
HC Rameshwar Andhale along with police staff were discharing
patrolling duty within the jurisdiction of Antop Hill Police Station after
20.00 hrs. of 07.09.2023. When they reached to the East of S.K. stores,
62-A/Block, GRD 58, Transit camp, Shaikh Mistry Road, Noora Bazar,
Antop Hill, Mumbai at 02.50 hrs., they noticed two persons i.e. accused
no.1 Owesh Yusuf Shaikh and accued no.2 Naved Jahangir Sayyed
carrying white bag. When they were asked about contents in the white
bag, they had given evasive answers. As it was suspected that the white
bag might have been containing contraband, two panchas were called
to the spot. Both accused were appraised about their rights u/sec. 50 of
the NDPS Act. Then, search of the white bag was conducted, which
resulted into sezure of 135 cough syrup bottles of Phensirest Company
100 ml. each containing Chlorpheniramine Maleate & Codeine
Phosphate. Accordingly, all bottles were seized under panchanama.
Both accused did not give particulars of source of contraband. Both
accused were arrested after registration of offence.
4.

The applicant is seeking bail on the grounds that the
applicant is innocent and he has been falsely framed in the instant
matter.

Seized 135 bottles is intermediate quantity of contraband.

Rigors of Sec. 37 of the NDPS Act are not attracted. He also relied upon
citations in which bail was granted to the accused possessing
intermediate quantity of the contraband i.e. 1. Birbal Prasad v/s. State
of Bihar(2018) 11 SCC 488 and 2. Sureshkumar Mohanram Bishnoi
V/s. The State of Maharashtra, Criminal B.A. No. 4289/2021. Similarly,
in the citations of Mehul Harish Makhwana v/s. The State of
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Maharashtra, Criminal B.A. No.289/2022, Gautam Dilip Datta v/s. The
State of Maharasthra, Criminal B.A. No. 3535/2022 and Mohammed
Arif Mohammed Shafi v/s. The State of Maharashtra, Criminal B.A.
3170/2022, bail was granted to the accused due to long incarceration.
It is contention of the applicant that all these citations are applicable to
the case in hand. The applicant is ready and willing to abide by any
conditions imposed by this Court. He prayed for bail.
5.

Ld. Adv. Mr. Taraq Sayed for the applicant submitted that
seized contraband is non-commercial quantity. Two accused are found on
the spot. Prosecution is not sure on whom to plant recovery of the
contraband. Prosecution does not know who was carrying the contraband.
Commercial quantity of codeine is 1 kg. Contraband is manufactured under
license. License is issued by drugs controller. There is chain of manufacturer,
wholesaler, retailer, etc. There is nothing to show that quantity of
contraband is commercial. He further relied upon Sec.2(xvi)(e) of the NDPS
Act to state that Codeine is opium derivative and on preparations
containing
more
than
0.2%
of
Morphine
or
containing
any
diacetylmorphine are treated as opium derivatives. Cough syrup is liquid
and it is not weighed. Concentration of substance is relevant. Citation of
Hira Singh & Another v/s. Union of India and another (2020) 20 SCC 272
is not applicable to the case in hand. He prayed for granting bail to the
applicant.
6.

Ld. APP Shankar Erande for the State submitted that this is
patrolling case. 135 bottles in the bag were found. Sec. 50 of the NDPS
Act is not applicable, but it is followed. The applicant is a habitual
offender. Wanted accused is not arrested. The applicants were not
having any license or bills to possess cough syrup bottles in huge
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proportion. He relied upon observations in Hira Singh & Another v/s.
Union of India and another (2020) 20 SCC 272 and submitted that seized
contraband is commercial quantity. Bar u/sec. 37 of the NDPS Act is
attracted. 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 prayed for rejection of the bail
application.
7.

On perusal of the record, it appears that accused no.1 and
accused no.2 were found in possession of 135 bottles of cough syrup
containing Codeine Phosphate. Each bottle was containing 100 ml.
Cough syrup. It means that total cough syrup was 13500 ml. Therefore,
weight of seized cough syrup solution was certainly above 1 kg. If
entry no. 239
in the 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
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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.
ORDER
1. Bail Application No. 901/2023 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
Name of the Judge
TIME
NAME OF STENOGRAPHER
04.45 p.m.

Mrs. S. W. Tuscano
HHJ Shri R. R. Bhagwat
(CR No.44)
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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