NDPS BA No.1090/2023
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in NDPS RA No.1072/23
MHCC020190712023
Presented on
: 20-12-2023
Registered on : 20-12-2023
Decided on
: 06-01-2024
Duration
: 16 Days
IN THE SPECIAL COURT FOR NARCOTIC DRUG AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
NDPS BAIL APPLICATION NO.1090 OF 2023
IN
NDPS REMAND APPLICATION NO.1072 OF 2023
Nazim Sohel Qureshi
Aged : 29 years, Occ: R/at : Room No.343, Garib Nagar, Gate
No.18, Bandra, Mahim, Mumbai-400
017.

)
)
)
)
) .. Applicant/Accused
V/s.
The State of Maharashtra
)
(At the instance of Kherwadi police )
station,
Mumbai,
vide
C.R. )
No.482/2023).
) .. Respondent/Prosecutor
Appearance :
Ld. Adv. Mr. Kamlesh Satre, for the applicant/accused.
Ld. APP Mr. Rajput, for the respondent/prosecution.

NDPS BA No.1090/2023
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in NDPS RA No.1072/23
CORAM : K.P. KSHIRSAGAR
ADDL. SESSIONS JUDGE (C.R.43)
DATE
: 06/01/2024
ORAL ORDER
This is an application taken out by applicant/accused
Nazim Sohel Qureshi under section 439 of Code of Criminal Procedure
for enlarging him on bail in C.R. No.482/2023 registered at Kherwadi
police station, Mumbai for the offences punishable under section 8(c)
r/w section 21(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 the material on record. Heard, arguments advanced
by Ld. Advocate for the applicant/accused and learned APP.
3.

Ld. Advocate for the 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.482/2023. Ld. Advocate for the
applicant/accused argued that, as per prosecution case on 08/08/2023
the applicant/accused and co-accused Azhar Hasan Sayyed were found
in suspicious circumstances on motor cycle bearing registration No.MH01-DM-3095 and therefore, applicant/accused and co-accused were
apprehended and from the search of the person of the accused Azhar
Hasan Sayyed 55 gram Mephedrone (MD) was recovered. Therefore,
offence punishable under section 8(c) r/w section 21(c) and section 29
of the NDPS Act is registered against the applicant/accused. Nothing is
recovered from the possession of the applicant/accused. From the reply
and remand papers it is clear that, search of the person of the co-
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in NDPS RA No.1072/23
accused Azhar Hasan Sayyed was taken out by Police Constable Patil
who is not authorized to take the search of person as per section 42 of
the NDPS Act. Therefore, the search of the person of the co-accused is
vitiated. The applicant/accused is resident of Mumbai. No criminal
antecedents are attributed to him. There is no positive material on
record to indicate the nexus between the applicant/accused and the coaccused. As the search of the co-accused from whose possession the
contraband is recovered is vitiated. The applicant/accused has
demonstrated reasonable grounds to believe that, applicant/accused is
not guilty of the offence alleged to have been committed by him. 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.
Ld. Advocate for the applicant/accused No.1 kept his
reliance on the following citations:
No.1
Aarif Akram Shaikh Vs. State of Maharashtra
in Bail Application No.3158/2021, dated
07/02/2023 of Hon’ble Bombay High Court.

Court has gone through the observations made therein.
4.

On the other hand, Ld. APP argued that, 55 gram
Mephedrone (MD) was recovered from the possession of the coaccused. Police Constable is not empowered to take search under
section 42 of the NDPS Act. Investigation is pending. Wanted accused
are yet to be arrested. The quantity of contraband seized in the present
crime is commercial quantity. Therefore, rigours of section 37 of the
NDPS Act are applicable to the case of the applicant/accused. If the
applicant/accused is released at this stage investigation may be
NDPS BA No.1090/2023
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in NDPS RA No.1072/23
hampered. The applicant/accused may commit similar offence if
released on bail. Therefore Ld. APP submitted that application be
rejected.
5.

The applicant/accused is alleged to have committed offence
punishable under section 8(c) r/w section 21(c) and section 29 of the
NDPS Act. The punishment provided for the offence may extend upto
20 years imprisonment and also fine which may extend upto One Lakh
rupees. Thus, the offence alleged to have been committed is of grievous
nature and sever punishment is provided for the same. Considering fact
that commercial quantity of contraband is recovered from the conscious
possession of the applicant/accused and nature of offences rigors of
section 37 of NDPS Act are applicable to present matter.
6.

As per section 37(2) of NDPS Act limitations on grant of
bail specified in clause (b) of sub section (1) of section 37 of NDPS Act
are in addition to the limitations under the Code of Criminal Procedure
or any other law for the time being in force on granting of bail. To check
the menance of drugs flooding the market and in order to effectively
control and eradicate menance of drug legislature has incorporated
above limitations. The above limitations are in public interest.
Therefore, for exercise of discretion for grant of bail twin conditions
under clause (b) of sub section (1) of NDPS Act must be satisfied. Detail
examination of evidence on record is not necessary while considering
the bail application. Negation of bail is rule and grant of bail is
exception under above clause.
7.

From the copy of FIR and reply of the application it appears
that, search of the co-accused from whose possession the contraband is
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in NDPS RA No.1072/23
alleged to be recovered was carried out by Police Constable Patil. As per
the Notification issued by the Maharashtra Government in exercise of
the powers conferred by sub-section (2) of section 41 of the NDPS Act,
1985, “All Police Officers of and above the rank of Head Constable in
the State of Maharashtra are authorised to take search of the person of
the accused”. Therefore, from the notification and the observations in
the citation relied by the applicant/accused cited supra there appear
substance
in
the
contention
of
the
Ld.

Advocate
for
the
applicant/accused that since the Police Constable below the rank of the
Head Constable in the State of Maharashtra is not empowered officer
and the search carried out by him is not a valid search.
8.

From the appreciation of the material on record it appears
that, prima facie there is violation of provision of section 42 of the
NDPS Act and the search of the co-accused from whose possession the
contraband alleged to be recovered is vitiated. Thus, prima facie there is
material discrepancy in the prosecution case. Moreover, except the fact
that, applicant/accused and co-accused were found on the same motor
cycle there is no independent material on record to show any nexus
between applicant/accused and co-accused. Therefore, prima facie there
are reasonable grounds to believe that, applicant/accused is not guilty
of the offence punishable under section 8(c) r/w section 21(c) and
section 29 of the NDPS Act. As such, in the present crime
applicant/accused has demonstrated reasons to show that there are
grounds to believe that applicant/accused is not guilty of offence
alleged to have been committed by him. Considering the nature of the
offence and the fact that, applicant/accused is not alleged to be
previously convicted or alleged to have any criminal antecedent the
court is also satisfied that, the applicant/accused is not likely to commit
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in NDPS RA No.1072/23
similar offence again. As such in the present case conditions under
section 37 of the NDPS Act are also fulfilled and therefore, embargo put
by section 37 of NDPS act is also lifted.
9.

Personal liberty is most precious of all fundamental rights.

There is presumption of innocence unless the guilt is proved.

The
object of the bail is to secure the attendance of the accused at the trial
and the object is neither punitive and preventive. From the material on
record prima facie, it appears that, applicant/accused had co-operated
during the investigation. Applicant/accused has also undertaken to cooperate during the trial. From prima facie appreciation of the material
on record, presence of the applicant/accused is likely to be secured even
if he is released on bail. Moreover, interest of the prosecution can be
safeguarded by imposing certain conditions. Therefore, considering the
above discussion and prima facie appreciation of material on record
there appear no necessity for further detention of the accused for
facilitating further full and fair investigation.
10.

Considering the nature of offence, gravity of offence age
and antecedents of the accused and from prima facie appreciation of the
material on record release of the accused on bail at this stage is not
likely to be prejudicial either to fair investigation or to the interest of
society at large. Therefore, there appear justifiable grounds for releasing
the applicant/accused on bail at the stage. As such the present
application deserves to be allowed. Hence, the following order.
ORDER
1.

NDPS
Bail
Application
No.1072/2023, is allowed.

No.1090/2023
in
NDPS
RA
NDPS BA No.1090/2023
2.

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in NDPS RA No.1072/23
Applicant/accused Nazim Sohel Qureshi, be released on bail in
C.R. No.482/2023 for offences under section 8(c) r/w section
21(c) and section 29 of the NDPS Act, 1985, registered by
Kherwadi police station, Mumbai on executing personal bond of
Rs.50,000/- only (Rs. Fifty Thousand only) with one surety in
like amount on the following conditions :
(a) Applicant/accused shall co-operate the Investigating Officer and
shall make himself available for interrogation by concern
Investigating Officer as and when required.
(b) Applicant/accused shall not tamper with prosecution evidence or
influence the prosecution witnesses in any manner.
(c) Applicant/accused shall co-operate in early disposal of the trial.
(d) Applicant/accused shall not commit any criminal offence while on the
bail.
(e) Applicant/accused and his surety shall provide their respective mobile
numbers and present address and proof of residence at the time of
execution of the bail bond/surety bond.
3.

NDPS Bail Application No.1090/2023, is disposed of accordingly.
(Pronounced in open Court)
Date : 06/01/2024.

(K.P. Kshirsagar)
N.D.P.S Special Judge
City Civil & Sessions Court,
Gr. Bombay (CR.43)
Dictated on
:
06/01/2024
Transcribed on
:
06/01/2024
Checked on
:
06/01/2024
Signed on
:
08/01/2024
NDPS BA No.1090/2023
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in NDPS RA No.1072/23
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE
08.01.2024
TIME
NAME OF STENOGRAPHER
05.00 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.

06.01.2024
Judgment/order signed by P.O on 08.01.2024
Judgment/order uploaded on
08.01.2024