BA 719 /2023
..1..

MHCC020123812023
Presented on : 19-08-2023
Registered on : 19-08-2023
Decided on
: 14-09-2023
Duration
: 26 days
IN THE COURT OF THE SPECIAL JUDGE FOR N.D.P.S. CASES
AT GREATER MUMBAI
BAIL APPLICATION NO. 719 OF 2023
IN
C. R. NO. 456/2023
Rehana Niyaz Shaikh
Age :- 41 years,
R/o : Plot No.40/B/16,
Road No.8, Shivaji Nagar,
Mumbai – 400 043.

… Applicant/accused no.2
V/s.
State of Maharashtra
Shivaji Nagar Police Station
(Crime No.456 of 2023).

… Respondent
Appearance :Mr. Dilip Mishra, 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 :
14.09.2023
ORDER
This is an application filed by applicant – Rehana Niyaz
Shaikh for grant of bail under Section 439 of Code of Criminal
Procedure, 1860 in C. R. No. 456/2023 registered at Shivaji Nagar
Police Station for offence punishable under sections 8(c) r/w Sec.22 of
the Narcotic Drugs and Psychotropic Substances Act, 1985 (For short,
BA 719/2023
-2-
“the NDPS Act”). Perused bail application, say filed by the Investigating
Officer through learned A.P.P. I have also gone through citations relied
by Ld. Advocate for the applicant.
2.

Heard learned counsel Mr. Dilip Mishra for the applicant and
learned A.P.P. Mr. Shankar Erande for the respondent/state.
3.

It is the case of prosecution that on 29.05.2023, the officers
of the respondent had gone for patrolling duty in the vicinity of Shivaji
Nagar Police Station at around 17.00 hrs. At around 19.00 hrs., they
noticed one woman whose movements were found to be suspicious
holding a plastic bag in her hand beside 90 ft. road, opposite road no.5,
on the lane going towards New Bus Depot, Shivaji Nagar, Govandi,
Mumbai. Hence, officers raised a suspicion that she must have come
there to sell some kind of narcotic drugs to her customers. Therefore,
they apprehended her. After following the necessary procedure, one
yellow colour box containing 600 Alprazolam tablets were recovered in
the form of strips and 12 bottles of cough syrup containing Codaine.
During
interrogation,
accused
no.1
stated
name
of
present
applicant/accused no.2 – Rehana Niyaz Shaikh as supplier of the
contraband. Hence present applicant/accused no.2 was apprehended
from plot no.40, Road No.8, Shivaji Nagar with 600 Alprazolam tablets
IP 0.5 mg. and 13 bottles of cough syrup containing Codaine. Said
contraband was seized under panchanama and both accused came to
be arrested after registration of the offence.
4.

The applicant is seeking bail on the grounds that the
applicant has been falsely implicated and being victimized in the
present case. Co-accused, who was found with cough syrup bottles and
tablets, has already
been granted bail by this Court. There is non-
BA 719/2023
-3-
compliance of sec. 50 of the NDPS Act. The contraband has not been
recovered from the exclusive possession of the present applicant.
Applicant is not the sole occupant of the said premises. The prosecution
itself has come up with a case that the alleged seized articles were
brought by her son Sonu by using his own money. Said Sonu is wanted
in the present case. The contraband allegedly recovered from the
applicant is in the form of medicine. The applicant is a lady and her
bail can be considered u/sec. 437(2) of the Cr.P.C. The applicant is
ready and willing to abide by all terms and conditions imposed by the
Court. The applicant is permanent resident of Mumbai. The applicant
prayed for granting bail to her.
5.

Ld. Adv. Dilip Mishra for the applicant submitted that date
of offence is 29.05.2023. Present applicant is arrested on the basis of
disclsoure statement of accused no.1 and similar quantity of contraband
is recovered from her. Accused no.1 is released on bail and present
applicant is entitled to bail on the ground of parity.

Search of the
applicant is conducted by WPC who is not empowered officer as per
Sec. 42(1) of the NDPS Act. The applicant is a lady. She is involved in
five criminal cases, but three offences are under the provisions of the
Drugs and Cosmetics Act and one offence is u/sec. 376 of the IPC, in
which she is acquitted. One offcence is relating to consumption of
Narcotic drug of small quantity having maximum punishment of
imprisonment up to one year. Criminal antecedents is not ground to
refuse bail. He relied upon two citations in which bail was granted to
the accused who had criminal antecedents. These citations are as under
:
1. Smt. Najma Abdul Shaikh v/s. State of Maharashtra in Cri. B.A. No.
1311/2012 decided by Hon’ble Bombay High Court on 23.10.2012.

BA 719/2023
-4-
2. Gani Latif Shaikh v/s. State of Maharashtra in Cri. B.A. No.
1729/2020 decided by Hon’ble Bombay High Court on 27.01.2021. He
prayed for granting bail to the applicant.
6.

On the contrary, Ld. APP Mr. Shankar Erande for the
respondent submitted that accused no.1 was found while discharging
patrolling duty. After giving account of seized contraband, he submitted
that accused no.2 came to be arrested on the basis of statement given
by accused no.1. Sec. 50 of the NDPS Act is complied with. Accused
no.2 was having 25 mobiles. Accused no.2 is habitual offender and she
has criminal antecedents. He prayed for rejection of the bail application.
7.

Considering rival submissions and material on record, adv.

Dilip Mishra for the applicant is mainly giving stress upon search of
the applicant taken by WPC who is not empowered officer as per sec.
42(1) of the NDPS Act. He relied upon observations in para 7 in the
case of Najma (supra). Similar aspect is dealt with in the bail order of
accused no.1 elaborately and it is squarely applicable to the case of
present applicant. The applicant is entitled to bail on the ground of
illegal search by unauthorized police officer i.e. WPC.
8.

Criminal antecedents of the applicant shows that she is not
convicted in any of the offences and only one offence is under the
provisions of the NDPS Act and it is relating to consumption.

The
applicant has satisfied tests laid down u/sec. 37(1) of the NDPS Act.
Ground of parity is available to the applicant. Considering gravity of
the offence, it is necessary to impose stringent conditions. Investigation
is not yet completed and prosecution is in need to interrogate the
applicant. Considering all attending circumstances, the applicant can
be released on bail by imposing stringent conditions. Hence, I pass
BA 719/2023
-5-
following order :
ORDER
1.

Bail Application No. 719/2023 is hereby allowed.

2.

Applicant/accused Rehana Niyaz Shaikh arrested in connection
with C. R. No. 456/2023 registered at Shivaji Nagar Police Station
for offence punishable under sections 8(c) r/w Sec. 22 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 be released
on executing P. R. Bond of Rs.60,000/- (Rs. Sixty Thousand only)
with one or more sureties in the like amount on following
conditions :(i)
The applicant shall attend Shivaji Nagar Police Station,
Mumbai on every Monday during 10.00 a.m. to 2.00 p.m.
till filing of the charge-sheet from the date of this order for
investigation purpose of the present crime.

(ii)
The applicant/accused and her sureties shall provide their
respective mobile numbers and correct addresses of their
residences alongwith names of two relatives with their
mobile numbers and addresses.

(iii)
The applicant/accused shall produce the proof of her
identity and proof of residence at the time of executing the
Bail Bond.

(iv)
The applicant/accused shall not tamper with prosecution
witnesses/evidence in any manner and co-operate in early
disposal of trial.

(v)
The applicant/accused shall not commit similar offence
while on bail.

3.

On request of Ld. Advocate for the applicant/accused, the
BA 719/2023
-6-
applicant/accused shall be released on provisional cash bail of
Rs.60,000/- for the next four weeks from the date of this order.
4.

Application is disposed off accordingly.

Date : 14.09.2023
Dictated on
Transcribed on
Signed on
(R. R. BHAGWAT)
Special Judge (N.D.P.S.),
City Civil & Sessions Court,
Gr. Bombay (C.R. NO.44)
: 14.09.2023
: 15.09.2023
: 15.09.2023
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE
16.09.2023
TIME
NAME OF STENOGRAPHER
5.30 p.m.

Mrs. S. W. Tuscano
Name of the Judge
HHJ Shri R. R. Bhagwat
(C.R. No.44)
Date of Pronouncement of
Judgment/Order.
Judgment/order signed by P.O on
Judgment/order uploaded on
14.09.2023
15.09.2023
16.09.2023