NDPS BA No.935/2023
..1..

in NDPS RA No.1244/2023
MHCC020158682023
Presented on
: 20-10-2023
Registered on : 20-10-2023
Decided on
: 07-11-2023
Duration
: 18 Days
IN THE SPECIAL COURT FOR NARCOTIC DRUG AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
NDPS BAIL APPLICATION NO.935 OF 2023
IN
NDPS REMAND APPLICATION NO.1244 OF 2023
Sarfaraj Sabirali Khan
Aged : 36 years, Occ: Driver
R/at : Room No. 08, Kurla Garden Indira
Nagar, Parighkhadi LBS Marg, Kurla
Mumbai 400 070.

)
)
)
)
) .. Applicant/Accused
V/s.
The State of Maharashtra
(At the instance of Kurla police station,
Mumbai,
vide
Spl.
LAC/C.R.
No.71/2023).

)
)
)
) .. Respondent/Prosecutor
Appearance :
Ld. Adv. Mr. Bangar, for the applicant/accused.
Ld. APP Mr. Rajput, for the respondent/prosecution.

NDPS BA No.935/2023
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in NDPS RA No.1244/2023
CORAM : K.P. KSHIRSAGAR
ADDL. SESSIONS JUDGE (C.R.43)
DATE
: 07/11/2023
ORAL ORDER
This is an application taken out by applicant/accused
Sarfaraj Sabirali Khan under section 439 of Code of Criminal Procedure
for enlarging him on bail in Spl. LAC/C.R. No.71/2023 registered at
Kurla police station, Mumbai for the offences punishable under section
8(c) r/w section 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, say of
the learned APP 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 and
no other bail application of the applicant/accused is pending in any
higher Court in respect of the above Spl. LAC/C.R. No.71/2023.
Learned Advocate for applicant/accused argued that, as per prosecution
case on 26/05/2023, co-accused Dharmendra Govind Goswami was
arrested and from him 10 gram Mephedrone (MD) was recovered. Coaccused No.1 during investigation disclosed that, the said Mephedrone
(MD) was provided to him by the applicant/accused for the purpose of
sale and therefore, present applicant/accused was arrested and the
offence punishable under section 8(c) r/w section 22(b) and section 29
of the NDPS Act is registered. The quantity of contraband recovered
from the applicant/accused is intermediate quantity. Applicant/accused
NDPS BA No.935/2023
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in NDPS RA No.1244/2023
is arrested only on the basis of the statement of the co-accused which is
not admissible. The co-accused No.1 is already released on bail. The
applicant/accused
is
falsely
implicated.

Mere
fact
that,
applicant/accused is having criminal antecedents is not a ground for
rejection of the bail. The applicant/accused is ready to abide all
conditions which the court may impose. Therefore, Ld. Advocate for the
applicant/accused prayed that, applicant/accused be released on bail.
4.

On the other hand, Ld. APP argued that, 10 gram
Mephedrone (MD) was recovered from the possession of the co-accused
Dharmendra Govind Goswami and during investigation it revealed that,
said contraband was provided to him by applicant/accused for the
purpose
of
sale.

The
applicant/accused
is
a
drug
peddler.

Applicant/accused is having criminal antecedents. Investigation is
pending. There is positive evidence/material on record which indicates
nexus/link between the applicant/accused and co-accused. If the
applicant/accused is released on bail at this stage then the
applicant/accused may tamper the prosecution evidence. Therefore, Ld.
APP submitted that, application be rejected.
5.

From
the
matter
on
record
it
appears
that,
applicant/accused is alleged to have committed offence punishable
under section 8(c) r/w section 22(c) and section 29 of NDPS Act, 1985.
The quantity of contraband recovered in the crime is intermediate
quantity. From appreciation of the material on record prima facie there
appear involvement of the applicant/accused in present crime and there
appear positive material to indicate nexus between applicant/accused
and co-accused. So there appear no substance in the contention of the
applicant/accused that, there is no positive material on record to show
NDPS BA No.935/2023
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in NDPS RA No.1244/2023
that, applicant/accused and co-accused have no any nexus and they had
not hatched any conspiracy. Therefore, section 29 of NDPS Act is
applicable to the case of applicant/accused. The applicant/accused is
having criminal antecedents. From prima facie appreciation of material
on record, it reveals that, the applicant/accused is a drug peddler and
involved in the sale of the contraband.
6.

Admittedly, till date investigation is not completed. 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 witnesses or influence
the witnesses or may involve in commission of such offences cannot be
ruled out at this stage. Moreover, considering the quantity of the
contraband seized and the facts of the case free, fair and full
investigation of the present crime is likely to be prejudiced and
investigation is likely to be hampered if the applicant/accused is
released at this stage. Therefore, at this stage there appear necessity for
the further detention of the applicant/accused for facilitating further
investigation.
7.

Moreover, from the accusations against applicant/accused
and prima facie appreciation of the material on record it appears that,
the applicant/accused has played active role. The offence alleged to be
committed by the applicant/accused is of heinous nature. Investigation
carried out till date suggest that, applicant/accused is involved in the
drug peddling and having nexus with the co-accused. At this stage high
degree of evidence is also not required to establish the conspiracy. At
NDPS BA No.935/2023
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in NDPS RA No.1244/2023
this stage prima facie applicant/accused also failed to demonstrate that,
he is not involved in the crime.
8.

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
large. Liberal approach in grant of bail in such kind of offences under
NDPS Act is also uncalled.
9.

On prima facie appreciation of the material on record and
considering the nature of the offence, gravity of the offence and fact
that, investigation is yet to be completed 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.935/2023 of applicant/accused
Sarfaraj Sabirali Khan in Spl. LAC/C.R. No.71/2023 in NDPS RA
No.1244/2023, is rejected.

2.

NDPS Bail Application No.935/2023 is disposed of accordingly.
(Pronounced in open Court)
KIRAN
PRAKASH
KSHIRSAGAR
Date : 07/11/2023.

Digitally signed by
KIRAN PRAKASH
KSHIRSAGAR
Date: 2023.11.09
13:11:07 +0530
(K.P. Kshirsagar)
N.D.P.S Special Judge
City Civil & Sessions Court,
Gr. Bombay (CR.43)
Dictated on
:
07/11/2023
Transcribed on
:
07/11/2023
Checked on
:
08/11/2023
Signed on
:
08/11/2023
NDPS BA No.935/2023
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in NDPS RA No.1244/2023
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE
09.11.2023
TIME
NAME OF STENOGRAPHER
01.00 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.

07/11/2023
Judgment/order signed by P.O
on
08/11/2023
Judgment/order uploaded on
09/11/2023