NDPS BA No.868/2023
..1..

in NDPS RA No.1083/23
MHCC020150152023
Presented on
: 04-10-2023
Registered on : 04-10-2023
Decided on
: 24-11-2023
Duration
: 01 M, 20 Days
IN THE SPECIAL COURT FOR NARCOTIC DRUG AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
NDPS BAIL APPLICATION NO.868 OF 2023
IN
NDPS REMAND APPLICATION NO.1083 OF 2023
Salim Ahmed Hussain Shaikh
Aged : -R/at : 185, 90 ft Road, Next to Sansaar
Bakery, Sai Baba Nagar, Dharavi,
Mumbai-400 017.

)
)
)
)
) .. Applicant/accused
V/s.
The State of Maharashtra
(At the instance of Dharavi police
station, Mumbai, vide Spl. LAC/C.R.
No.602/2023)
)
)
)
) .. Respondent/Prosecutor
Appearance :
Ld. Adv. Mr. Amrish Salunkhe, for the applicant/accused.
Ld. APP Mr. Rajput, for the respondent/prosecution.

NDPS BA No.868/2023
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in NDPS RA No.1083/23
CORAM : K.P. KSHIRSAGAR
ADDL. SESSIONS JUDGE (C.R.43)
DATE
: 24/11/2023
ORAL ORDER
This is an application taken out by applicant/accused Salim
Ahmed Hussain Shaikh under section 439 of Code of Criminal
Procedure for enlarging him on bail in Spl. LAC/C.R. No.602/2023
registered at Dharavi police station, Mumbai for the offences punishable
under section 8(c) r/w section 22(c) 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.

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 pending in Hon’ble High Court or any superior
court. Ld. Advocate for the applicant/accused argued that, as per
prosecution case on 12/08/2023, 99 bottles of Chlorpheniramine
Maleate & Codeine Phosphate syrup, PHENSIREST cough syrup of 100
ml each were recovered from the possession of the applicant/accused.
The applicant/accused is falsely implicated in the present case. There is
delay in carrying out proceeding under section 52A of the NDPS Act.
Therefore, possibility of tampering cannot be ruled out. The above facts
creates reasonable doubt about the prosecution case. Applicant/accused
NDPS BA No.868/2023
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in NDPS RA No.1083/23
is resident of Mumbai and he is is ready to abide all conditions which
the court may impose. Therefore, Ld. Advocate for applicant/accused prayed
that, applicant/accused be enlarged on bail.
Ld. Advocate for the applicant/accused kept his reliance on
the following citation :
No.1
Kashif Vs. Narcotics Control Bureau, in Bail
Application
No.253/2023,
dated
18/05/2023 of Hon’ble Delhi High Court.

Court has gone through the observations made therein.
4.

On the other hand, Ld. APP argued that, commercial
quantity of contraband is recovered from the conscious possession of
the applicant/accused. Therefore, provisions of section 37 of the NDPS
Act is applicable. Till date investigation is not completed and final
report is not filed. The question whether there is delay in carrying out
the proceeding under section 52A of the NDPS Act cannot be considered
at this stage as till date the final report is not filed in the present case.
The applicant/accused is likely to commit similar offence if he is
released on bail. Considering the above fact, the presence of the
applicant/accused is not likely to be secured if he is released on bail.
Therefore, Ld. APP prayed that application be rejected.
5.

The applicant/accused is alleged to have committed offence
punishable 8(c) r/w section 22(c) 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
NDPS BA No.868/2023
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in NDPS RA No.1083/23
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 offence 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.

There is no proposition of law that non-compliance of
section 52A vitiates trial. Court can take judicial note of the judgment in
the case of State of Punjab Vs. Balbir Singh (1994) 3 SCC 299 in which
Hon’ble Apex Court observed that “section 52 and 57 of NDPS Act come
into operation after arrest and seizure under this Act. If there is any
violation of these provisions, then court has to examine effect of the
same. In that context while determining whether the provisions of act to
be followed, after arrest and search are directory or mandatory, it will
have to be kept in mind that provisions of statute creating public duties
are generally speaking directory. The provisions of above two sections
contain certain procedural instructions for strict compliance by the
NDPS BA No.868/2023
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in NDPS RA No.1083/23
officers. But if there is no strict compliance of any of these instructions
that by itself cannot render the acts done by these officers null and void
and at the most it may affect the probative evidence regarding arrest or
search, and in some cases it may invalidate search or arrest. But such
violation by itself does not invalidate the trial. Therefore, it has to be
shown that such non-compliance has caused prejudice and resulted into
failure of justice”.
8.

From the appreciation of the material on record it appears
that, commercial quantity of contraband is recovered from the
conscious possession of the applicant/accused. Till date investigation is
pending and final report is not filed in the present case. Mere fact that,
in reply it is mentioned that, the inventory panchnama was prepared on
03/10/2023 it cannot be said that, there is delay on the part of the
respondent in carrying out the proceeding under section 52A of the
NDPS Act. At this stage, there is no material for determining whether
respondent had taken out application before the Ld. Magistrate for
carrying out proceeding under section 52A of the NDPS Act within
reasonable time or not. Therefore, at this stage it cannot be ascertained
that, whether the application for carrying out proceeding under section
52A of the NDPS Act was not taken out by the respondent within
reasonable time. Therefore, there appear no substance in the contention
of the applicant/accused that, there is violation of provisions of section
52A of the NDPS Act. Moreover, considering fact that, investigation in
the present case is not completed and above facts in the humble opinion
of this court judgment relied by applicant/accused is not helpful to at
this stage.

NDPS BA No.868/2023
9.

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in NDPS RA No.1083/23
In view of mandate of section 37 of the NDPS Act the
burden is upon the accused to show that, there are reasonable grounds
to believe that, he is not guilty of the offence alleged. However, the
applicant/accused has not demonstrated any reasonable grounds to
believe that, he has not committed the offence alleged. From the
appreciation of the material on record there are reasonable grounds to
believe that, applicant/accused has committed the offence punishable
under section 8(c) r/w section 22(c) of the NDPS Act. Moreover,
considering the nature of offence and the matter on record and the fact
that,
huge
quantity
of
contraband
was
recovered
from
the
applicant/accused court is also not satisfied that, the applicant/accused
will not commit similar offence again. As such conditions under section
37 of NDPS Act are not fulfilled and therefore, embargo put by section
37 of NDPS act is not lifted.
10.

Prima facie there is no material on record, so as to doubt
genuineness of the prosecution case. Prima facie there appear no
inherent
infirmities
or
improbability
in
the
prosecution
case.

Considering the nature of offence the possibility that, after release of
the
applicant/accused,
the
applicant/accused
may
tamper
the
prosecution evidence or influence the witnesses or may involve in
commission of such offences cannot be ruled out at this stage.
Therefore, at this stage there appear necessity for the further detention
of the applicant/accused.
11.

Considering the above facts and discussion and prima facie
appreciation of the material on record release of the applicant/accused
at this stage is likely to be prejudicial to the interest of the society at
NDPS BA No.868/2023
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in NDPS RA No.1083/23
large. Liberal approach in grant of bail in such kind of offences under
NDPS Act is also uncalled.
12.

On prima facie appreciation of the material on record and
considering the nature of the offence, gravity of the offence there
appear no justifiable grounds for releasing applicant/accused on bail at
this stage. As such the present application is liable to be rejected.
Hence, the following order.
ORDER
1.

NDPS Bail Application No.868/2023 of applicant/accused Salim
Ahmed Hussain Shaikh in Spl. LAC/C.R. No.602/2023 in NDPS
RA No.1083/2023, is rejected.

2.

NDPS Bail Application No.868/2023 is disposed of accordingly.
(Pronounced in open Court)
Digitally signed
by KIRAN
PRAKASH
KIRAN
KSHIRSAGAR
PRAKASH
KSHIRSAGAR Date:
2023.11.29
11:55:36 +0530
Date : 24/11/2023.

(K.P. Kshirsagar)
N.D.P.S Special Judge
City Civil & Sessions Court,
Gr. Bombay (CR.43)
Dictated on
:
24/11/2023
Transcribed on
:
24/11/2023
Checked on
:
24/11/2023
Signed on
:
24/11/2023
NDPS BA No.868/2023
..8..

in NDPS RA No.1083/23
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE
29.11.2023
TIME
NAME OF STENOGRAPHER
11.54 a.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.

24/11/2023
Judgment/order signed by P.O on 24/11/2023
Judgment/order uploaded on
29/11/2023