BA.No.989/2023
-1-
NDPS.RA.1347/2023
MHCC020166812023
Presented on
Registered on
Decided on
Duration
: 03-11-2023
: 03-11-2023
: 04-12-2023
: 0 years, 1 months, 1 days
IN THE SPECIAL COURT FOR NARCOTIC DRUGS AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GREATER BOMBAY
BAIL APPLICATION NO.989 OF 2023
IN
NDPS REMAND APPLICATION NO.1347 OF 2023
Smt. Rukhsana Asgar Shaikh
Age-55 years, Occ.-Housewife,
Residing at 176, Maharashtra Nagar
No.1, Slaughter House Compound,
Mumbai, Maharashtra-400 050.

.. Applicant/Accused No.2
VERSUS
The State of Maharashtra
(Sr. Inspector of Police, Bandra Police
Station, vide CR.No.1499/2023.)

.. Respondent.

Advocate Mr. Bhandary for the Applicant/Accused.
APP Ms. Geeta Nayyar for the State/Respondent.
CORAM : H.H. THE SPECIAL JUDGE (NDPS)
SHRI. A.V. KHARKAR
(C.R.NO.42)
DATE : 04th December, 2023.

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NDPS.RA.1347/2023
ORDER
1.

This is second bail application by applicant/accused No.2 Smt.

Rukhsana Asgar Shaikh who has been arrested by officers of Bandra
Police Station in CR.No.1499 of 2023, for the offence punishable under
Section 8(c) read with Section 21(b) and 29 of the Narcotic Drugs and
Psychotropic Substance Act, 1985, (for short, ‘NDPS Act’). The first bail
application was rejected on 19.10.2023.
2.

Heard Counsel for the applicant/accused and APP for the
State/Respondent. Perused say.
3.

As per the case of the prosecution, on 6.10.2023, the officers of
Bandra Police Station were on patrolling duty. They had orders to take
action against those who were selling narcotic substance. The team led
by PI Purnaik were patrolling the area near Shastri nagar, Bandra (W),
Mumbai,. They noticed man and woman moving suspiciously.

They
stopped the man and woman. Call panch witnesses and conducted
their search by following the mandatory safeguards.

The man was
identified as Nasir Dawood Khan and the woman was identified as
Rukhsana Asgar Shaikh. During their search, they were found carrying
gard (Herion) weighing 34 grams and 26 grams respectively.
4.

The counsel for the applicant has submitted that the seized
contraband is non commercial quantity. Hence, the bar of Section 37 of
the NDPS Act would not apply. The accused is not guilty of the offence
and the applicant cannot be kept behind bar. She has submitted that
the search was conducted by an unempowered officer and due to her
health ailments, she be released on bail. The counsel for the accused
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NDPS.RA.1347/2023
has produced medical records of the accused and expressed willingness
to place on record.
5.

APP has submitted that the application is not maintainable as
there are no change in circumstances. APP has submitted that the
accused are habitual offenders. They are selling narcotic substance in
Western Suburbs The investigation is in progress. The officers are
collecting and analyzing technical information and there is possibility
of unearthing a chain in supply and procurement of narcotic
substances. The prosecution has strongly resisted the application for
bail. APP has submitted that bail cannot be granted as a matter of
routine because the seized contraband is a non commercial quantity.
The accused are peddlers and the investigation can lead to the main
suppliers. So far as the ground of ill-health is concerned the same is
not taken up in the bail application and the prosecution have no
opportunity to rebut the same. In this case the personal search of the
accused was not taken. Hence, provisions of Section 50 of the NDPS
Act would not apply. The counsel for the accused has submitted that
the bag carried by the accused was searched by women constable on
the instruction of the API and women constable is not empowered. APP
has submitted that the API had searched the bag and he had only taken
aid of a women constable as the accused was a lady. She has also
submitted that the charge-sheet and the panchanama is not before the
Court and hence, the fact that the accused was searched by an
unempowered officer cannot be considered.
6.

In this case there are no change in circumstances since rejection
of the bail application. I do not find any reason to consider the bail
BA.No.989/2023
application.

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NDPS.RA.1347/2023
Moreover, only because the contraband is a non
commercial quantity, accused cannot be granted bail. Considering this
circumstance, the application for bail stands rejected and following
order is passed:
Order
Bail Application No.989 of 2023 in NDPS Remand Application
No.1347 of 2023 stands rejected and disposed off.

Date : 04.12.2023
Dictated on
Transcribed on
HHJ signed on
(A. V. KHARKAR)
NDPS Special Judge,
City Civil & Sessions Court,
Gr. Bombay.
: 04.12.2023
: 05.12.2023
: 08.12.2023
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NDPS.RA.1347/2023
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
08.12.2023/12.55 p.m.
UPLOAD DATE AND TIME
(Mrs. Pradnya S. Naik)
NAME OF STENOGRAPHER
Name of the Judge (With Court room no.)

SHRI A.V.Kharkar
(C.R. No.42)
Date of Pronouncement of JUDGMENT/ 04.12.2023
ORDER
JUDGMENT/ORDER signed by P.O. on
08.12.2023
JUDGMENT/ORDER uploaded on
08.12.2023