BA 842/2023
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MHCC020144062023
IN THE COURT OF THE SPECIAL JUDGE FOR N.D.P.S. CASES
AT GREATER MUMBAI
BAIL APPLICATION NO. 842 OF 2023
IN
(NDPS R. A. No. 1152/23)
Rizwan Akhtar Khan
Age: 27 years, Occ.: Labourer,
R/at:- Near Tayyaba Masjid,
Plot No.32/D/5, Baiganwadi,
Govandi, Mumbai 43.

… Applicant
V/s.
State of Maharashtra
(Deonar Police Station, in Spl.
LAC No.335/2023, CCTNS No.1012/23)
… Respondent/
Complainant.

Appearance :Mrs. Puja Yadav, 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 :
15.12.2023
ORDER
This is an application filed by applicant – Rizwan Akhtar
Khan for grant of bail under Section 439 of Code of Criminal
Procedure,1860, who was arrested on 05.09.2023 in Spl. LAC
No.335/2023, CCTNS No.1012/23, registered
with Deonar Police
Station, for offence punishable under sections 8(c) r/w 22 and 29 of
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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.
2.

Heard learned Counsel Mrs. Puja Yadav for the applicant and
learned A.P.P. Mr. Shankar Erande for the respondent/State.
3.

It is the case of prosecution that on 29.08.2023 informant
Shahaji Jalindar Chachar, PSI Prashant Tayade, PC Patil and PC Chavan
attached to Deonar Police Station were discharging patrolling duty
within the jurisdiction of Deonar Police Station. They noticed a person
at transit Camp, Baiganwadi Junction, Govandi, Mumbai at about 20.30
hours and his movements were suspicious. He was carrying white bag in
his right hand. As his movements were suspicious, he was apprehended.
Panchas were called to the spot. Similarly, raiding material was brought.
Then, search of the white bag was conducted by PSI Tayade and 43
cough syrup
bottles containing
Chlorpheniramine Maleate
and
Codenine Phosphate were found. Therefore, seizure was made of said
contraband and accused Moin Riyaz Khan (accused no.1) came to be
arrested after registration of offence. As accused no.1 Moin Riyaz Khan
revealed names of accused Rizwan Khan (accused no.2) and Shakeel
Chorva. Accused no.2 Rizwan was apprehended from opposite Quba
hotel, Gautam Nagar, Govandi, Mumbai on 05.09.2023 and he came to
be arrested. It is case of the prosecution that accused no.2 Rizwan
admitted that he used to sell cough syrup bottles to accused no.1 Moin
Khan.
4.

The applicant is seeking bail on the grounds that he is
innocent and he has been falsely implicated in the present crime. There
is no recovery at the instances of the applicant. The applicant has been
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arrested only on the basis of statement of accused no.1 Moin Riyaz
Khan and there is no other evidence on record. Provision u/sec. 53 of
the NDPS Act has not been complied with. Prosecution failed to bring
any ingredient of sec. 8(c) of the NDPS Act in the present case.
Prosecution has failed to show prima-facie case against the applicant.
Investigation and recovery has already been completed and hence, no
purpose will be served by keeping him behind bars. The applicant is
resident of Mumbai. He has no criminal antecedents. He is ready to cooperate with police in further investigation and he will not tamper with
evidence. Hence, he prayed for releasing him on bail.
5.

Ld. Adv. Mrs. Puja Yadav for the applicant submitted that
the applicant is arrested on the basis of disclosure statement of accused
no.1 Moin Khan. No recovery is made from the applicant. This is case of
nil possession. There is no other offence on record. Though the
applicant having criminal antecedent, but he is not convicted. She relied
upon observation in the case of Tofan Singh V/s. State of Tamil Nadu
(2021) 4 SCC 1 and stated that statement of co-accused is not
admissible piece of evidence. Lastly, she prayed for releasing the
applicant on bail.
6.

On the contrary, Ld. APP Mr. Shankar Erande for the state
submitted that total 43 bottles are recovered from accused no.1. There
are total three accused. Accused no.1 took names of accused no.2
Raizwan and one Shakeel as the suppliers of bottles. All three accused
are connected with each other as per CDR record. The applicant is
involved in ten criminal cases as mentioned in say at Exh.2. He prayed
for rejection of the bail application.
7.

Considering rival submissions and material on record, it
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appears that 43 cough syrup bottles containing Chlorpheniramine
Maleate and Codeine Phosphate are seized from accused no.1. It is case
of the prosecution that accused no.1 revealed names of applicant
Rizwan and one Shakeel as vendors of cough syrup bottles. Therefore,
the applicant is arrested. Except disclosure statement of accused no.1,
there is no other evidence on record against the applicant. No
contraband is seized from possession of the applicant or at his instance.
In such situation, observations in the case of Tofan Singh V/s. State of
Tamil Nadu (2021) 4 SCC 1 (supra) are applicable. Considering all
attending circumstances, evidence on record is too short to attract the
provision of section 29 of the NDPS Act to attribute recovery made from
accused no.1 to accused no.2. For all these reasons, bar u/sec. 37 of the
NDPS Act is not applicable to this case of the applicant. The applicant is
permanent residence of Mumbai. He has criminal antecedents, but there
is no evidence to show that he is convicted in either of offences. The
applicant can be released on bail by imposing stringent conditions. He
can be directed to attend the concerned police station for further
investigation in the matter. Hence, I pass following order :ORDER
1. Bail Application No. 842/2023 is hereby allowed.
2. Applicant/accused Rizwan Akhtar Khan in Spl. LAC No.335/2023,
CCTNS No.1012/23 of Deonar Police Station registered under section
8(c) r/w 22 and 29 of the Narcotic Drugs and Psychotropic Substances
Act,1985 shall be released on his executing P. R. Bond of Rs.40,000/(Rs. Forty Thousand only) with one or two sureties in the like amount.
3. The applicant/accused to attend Deonar Police Station on every
Monday between 11.00 a.m. to 02.00 p.m. till filing of charge-sheet.
4. The applicant/accused and his sureties shall provide their respective
mobile Nos. and correct addresses of their respective residences
along with names of two relatives with their mobile Nos. and addresses.

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5. The applicant/accused shall produce the proof of his identity and
proof of residence at the time of executing the bail bond.
6. The applicant/accused shall not tamper with prosecution
witnesses/evidence in any manner and co-operate in early disposal of
trial.
7. The applicant/accused shall not commit similar offence while on
bail.
8. On request of Ld. Advocate for the applicant/accused, the
applicant/accused shall be released on provisional cash bail of
Rs.40,000/- for the next four weeks from the date of this order.
9. Bail application no.842/2023 is disposed off accordingly.
(Order pronounced in open Court)
Date : 15.12.2023
Dictated on
: 15.12.2023
Transcribed on : 16.12.2023
Signed on
: 16.12.2023
Sd/(R. R. BHAGWAT)
Special Judge (N.D.P.S.),
City Civil & Sessions Court,
Gr. Bombay (C.R. NO.44)
BA 842/2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE
16/12/2023
TIME
NAME OF STENOGRAPHER
01.55 p.m.

Mr. Ashok Sudhakar Patil
Name of the Judge
HHJ Shri R. R. Bhagwat
(CR No.44)
Date of Pronouncement of
Judgment/Order.
Judgment/order signed by P.O on
15.12.2023
Judgment/order uploaded on
16.12.2023
16.12.2023