NDPS BA No.1083/2023
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in NDPS RA No.1403/2023
MHCC020190372023
Presented on
: 19-12-2023
Registered on : 19-12-2023
Decided on
: 06-01-2024
Duration
: 18 Days
IN THE SPECIAL COURT FOR NARCOTIC DRUG AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
NDPS BAIL APPLICATION NO.1083 OF 2023
IN
NDPS REMAND APPLICATION NO.1403 OF 2023
Mrs. Rubina Niyaju Shaikh
Aged : 37 years, Occ: Housewife,
R/at : Qureshi Nagar Slum Area, behind
Maulana Baba Dargah, Bandar (West),
Mumbai-400 052.

)
)
)
)
) .. Applicant/Accused
V/s.
The State of Maharashtra
)
(At the instance of Bandra police station )
Mumbai, vide C.R. No.997/2023).
) .. Respondent/Prosecutor
Appearance :
Ld. Adv. Mr. Sawalkar, for the applicant/accused.
Ld. APP Mr. P.J. Rajput, for the respondent/prosecution.
CORAM : K.P. KSHIRSAGAR (C.R.43)
(ADDL. SESSIONS JUDGE)
DATE
: 06/01/2024
NDPS BA No.1083/2023
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in NDPS RA No.1403/2023
ORAL ORDER
This is an application taken out by applicant/accused Mrs.
Rubina Niyaju Shaikh under section 439 of Code of Criminal Procedure
for enlarging her on bail in C.R. No.997/2023 registered at Bandra
police station, Mumbai for the offences punishable under section 8(c)
r/w 22(b) 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 submitted that,
this is the first bail application taken out by the applicant/accused. No
other bail application taken out by the applicant/accused in respect of
the present crime is rejected by Hon’ble High Court and pending in
Hon’ble High Court or any superior court. Learned Advocate for
applicant/accused argued that, as per prosecution case, on 03/07/2023,
during patrolling co-accused Sohail Riyajuddin Saifi was found in
suspicious condition and during his personal search and search of boot
of his Suzuki Access Scooter 51 gram Mephedrone (MD) was recovered
from the possession of the co-accused. During investigation co-accused
disclosed that, he had procured the said contraband from the
applicant/accused. Therefore, offence punishable under section 8(c)
r/w section 22(b) and section 29 of NDPS Act, 1985 is registered
against the applicant/accused and co-accused. The co-accused is already
released on bail on the ground that, the search of the accused person
carried out by the unauthorized officer and it vitiates the trial. No
contraband is recovered from the applicant/accused. Applicant/accused
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in NDPS RA No.1403/2023
is in custody since 29/10/2023. No previous conviction is attributed to
the applicant/accused. As the search of the person of the co-accused by
unauthorized officer vitiate the search and there is no positive material
to indicate any nexus between applicant/accused and co-accused, the
applicant/accused has demonstrated reasonable grounds to believe that,
she is not guilty of the offence alleged to have been committed by her.
Section 29 of the NDPS Act is also not applicable. Mere fact that,
applicant/accused is having criminal antecedents is not a just ground
for rejection of bail. Applicant/accused is woman and resident of
Mumbai. Applicant/accused is ready to abide by 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 kept his reliance on
the following citation :
No.1
Abdullah Abdul Salam Shaikh Vs. The State
of Maharashtra, in Bail Application
No4491/2021, dated 02/03/2023 of Hon’ble
Bombay High Court.

Court has gone through the observations made therein.
4.

On the other hand, Ld. APP argued that, it is not dispute
the fact that, search of the co-accused Sohail Riyajuddin Saifi and the
vehicle in possession of the co-accused was conducted by a Police
Constable Wani who is not authorized to take search and therefore,
there is breach of provision of section 42(A) of the NDPS Act. However,
Ld. APP argued that, 51 gram Mephedrone (MD) is recovered from the
possession of the co-accused and co-accused has disclosed name of the
applicant/accused as a supplier of said contraband. Therefore, rigours
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in NDPS RA No.1403/2023
of section 37 of the NDPS Act are applicable to the present case.
Investigation
is
pending.

Applicant/accused
is
having
criminal
antecedents. If the applicant/accused is released at this stage then
investigation may be hampered. Applicant/accused may commit similar
offences if released on bail. Therefore, Ld. APP submitted that, bail
application be rejected.
Ld. APP kept his reliance on the following citation :
No.1
Sudha Singh Vs. The State of Uttar
Pradesh & Anr., in Criminal Appeal
No.448/2021, dated 23.04.2021 of
Hon’ble Apex Court.

Court has gone through the observations made therein.
5.

From
the
matter
on
record
it
appears
that,
the
applicant/accused is alleged to have committed offence punishable
under section 8(c) r/w 22(b) and section 29 of NDPS Act, 1985. The
punishment provided for the above offence may extend to 10 years and
with fine which may extend to Rs. One lakh only. From appreciation of
material on record it appears that, during patrolling the co-accused was
found in suspicious circumstances and during his personal search and
search of boot of his Suzuki Access Scooter 51 gram Mephedrone (MD)
was recovered from the possession of the co-accused. Admittedly, the
quantity of contraband alleged to be recovered from co-accused is
commercial quantity. Therefore, prima facie case is made out against
applicant/accused for the offence punishable under section 8(c) r/w
section 22(c) and section 29 of the NDPS Act. Therefore, rigour of
section 37 of NDPS Act is applicable in present matter. As per the
prosecution case co-accused No.1 disclosed that, he had procured the
NDPS BA No.1083/2023
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in NDPS RA No.1403/2023
contraband recovered from him from the applicant/accused and
therefore, the applicant/accused is arrested in the present crime.
6.

From the appreciation of the material on record it reveals
that, commercial quantity of contraband is alleged to be recovered from
the co-accused. From the copy of FIR and the reply and submission of
the Ld. APP it is clear that, in the present case search of the person of
the co-accused and vehicle in possession of the co-accused was
conducted by Police Constable Wani. As per the notification issued by
the Home Department, Mantralaya, Bombay, dated 14/11/1985, 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, the search carried out by the
unauthorized officer in the present case is apparently illegal.
7.

In the present matter there is no dispute about the factual
aspect that in the present case search of the co-accused and the vehicle
in possession of the co-accused was carried out by Police Constable
Wani who was not authorized to take search of the person of the coaccused and his vehicle. Therefore, the applicant/accused has
demonstrated the reasons to show that, there are reasonable ground to
believe that, in the present case search carried out by the Police
Constable Wani of the co-accused and his vehicle is illegal and invalid
and
it
vitiates
applicant/accused
applicant/accused
the
cited
that,
proceeding.
supra
search
The
supports
of
the
judgment
the
relied
by
contention
of
co-accused
carried
by
unauthorized officer is illegal. Moreover, there appear no independent
positive material to indicate any nexus between applicant/accused and
NDPS BA No.1083/2023
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in NDPS RA No.1403/2023
co-accused. Therefore, from the material on record applicant/accused
demonstrated that, there appear reasonable grounds for believing that,
the applicant/accused is not guilty of the offence alleged to have been
committed by him. Moreover, no previous conviction are attributed to
the applicant/accused.
8.

Moreover, from the appreciation of the material on record
there appear no any independent material to indicate the nexus
between the applicant/accused and co-accused. The co-accused from
whose possession the contraband was recovered is released on bail in
NDPS Bail Application No.987/2023. Therefore, the applicant/accused
has demonstrated the reasons to show that, there are reasonable ground
to believe that, in the present case search carried out by the Police
Constable Wani of the co-accused and his vehicle is illegal and invalid
and it vitiates the proceeding. Therefore, from the material on record
applicant/accused demonstrated that, there appear reasonable grounds
for believing that, the applicant/accused is not guilty of the offence
alleged to have been committed by him. Each case it is to be decided on
the basis of the fact of each case by the prosecution. Therefore, mere
fact that, applicant/accused is having criminal antecedents does not
automatically disentitle the applicant/accused for grant of bail.
Moreover, the applicant/accused is a woman. Therefore, in the opinion
of this court there are reasons to believe that, applicant/accused is not
likely to commit similar offence in future. As such, in the present case
condition under section 37 of the NDPS Act are also fulfilled and
therefore, embargo put by section 37 of the 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
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in NDPS RA No.1403/2023
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.1083/2023 in C.R. No.997/2023 in
NDPS RA No.1403/2023, is allowed.

2.

Applicant/accused Mrs. Rubina Niyaju Shaikh, be released on
bail in C.R. No.997/2023 under section 8(c) r/w 22(b) and
section 29 of NDPS Act, 1985 registered by Bandra police station
on executing personal bond of Rs.50,000/- only (Rs. Fifty
thousand only) with one surety in like amount on the following
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in NDPS RA No.1403/2023
conditions :
(a) Applicant/accused shall co-operate the Investigating Officer and
shall make herself 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 her 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.1083/2023 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.1083/2023
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in NDPS RA No.1403/2023
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE
08.01.2024
TIME
NAME OF STENOGRAPHER
02.00 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