BA 1033/2023
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MHCC020174692023
IN THE COURT OF THE SPECIAL JUDGE FOR N.D.P.S. CASES
AT GREATER MUMBAI
BAIL APPLICATION NO. 1033 OF 2023
IN
C. R. NO. 521/2023
Shadaab Salim Mulla
Age : 46 years
R/o : Bhandar Wada,
near Bohri Colony, Marol,
Andheri, Mumbai.

… Applicant/accused no.1
V/s.
State of Maharashtra
(Powai Police Station)
… Respondent
Appearance :Ms. Alisha Parekh, 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 :
11.12.2023
ORDER
This is an application filed by applicant – Shadaab Salim
Mulla for grant of bail under Section 439 of Code of Criminal
Procedure, 1860 in C. R. No. 521/2023 registered at Powai Police
Station for offence punishable under sections 8(c) r/w sec.22(c) & 29
of 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.

BA 1033/2023
2.

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Heard learned Counsel Ms. Alisha Parekh for the applicant and
learned A.P.P. Mr. Shankar Erande for the respondent/State.
3.

It is the case of prosecution that informant HC Shishupal
Paratkar along with other police staff of Powai Police Station went on
patrolling duty at 13.24 hrs. of 05.09.2023. When they reached to
back side of Budha Vihar Compound, Gautam Nagar, Powai at 14.30
hrs., they saw accused no.1 – Shadab Salim Mulla in suspicious
condition with a black colour plastic bag in his hand. Therefore,
panchas were called to the spot. Raiding material was also brought to
the spot. After complying necessary procedure, search was conducted
by PSI Paratkar which resulted into recovery of 15 gms. MD from the
transparent plastic bag kept in the black colour plastic bag in the hand
of acccused no.1 Shadab. Accused no.1 Shadab revealed name of
accused no.2 Mosin Yasin Khan as supplier of the contraband.
Disclosure statement of accused no.1 Shadab made the police team to
visit room No.1, Shivneri Chawl in front of Yadav Store, behind Budha
Vihar, Powai where accused no.2 Mosin Khan and accused no.3 Fahmida
Mosin Khan were found. 55 gms. of MD was seized from right pant
pocket of accused no.2 Mosin. Cash of Rs. 45,000/- was also seized
from accused no.2 Mosin. 20 gms. MD was recovered from purse of
accused no.3 – Fahmida.

Search of accused no.3 – Fahmida was
conducted by WPC Madwan. All these articles and cash was seized
under panchanama and all accused were placed under arrest after
registration of the offence.
4.

The applicant is seeking bail on the grounds that
the
applicant is innocent and he has been implicated in the false case. There
is recovery of 15 gms. of MD at the instance of the applicant and it is
intermediate quantity.

Rigors of Sec. 37 of the NDPS Act are not
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attracted. He has no connection with alleged recovery of commercial
quantity of contraband at the instance of accused no.2 & 3. Accused
no.2 is attributed role of the supplier and not the applicant.

The
applicant cannot be connected with incriminating material recovered
from accused no.2. He relied upon observations of Hon’ble Supreme
Court in the case of Birbal Prasad v/s. State of Bihar (2018) 11 SCC
488, in which bail was granted to the accused possessing intermediate
quantity of the contraband. Similarly, aspect of long incarceration is
considered in other citations i.e. i) Mehul Harish Makhwana v/s. The
State of Maharashtra, Criminal B. A. No. 289/2022 and ii) Gautam Dilip
Datta v/s. The State of Maharashtra, Criminal B. A. No. 3535/2022.
He further relied upon citation of Mohammed Arif Mohammed Shafi
v/s. The State of Maharashtra, Criminal B. A. No. 3170/2022 regarding
bail in the case of possession of non-commercial quantity on the ground
of custody for more than one year and three months. He prayed for
releasing him on bail.
5.

Ld. Adv. Ms Alisha Parekh for the applicant/accused
submitted that accused no.3 Fahmida Mosin Khan is released on bail as
per order in B.A. No. 883/2023 passed on 06.11.2023. 15 gms. MD is
seized from accused no.1. Accused no.2 was found in possession of 55
gms. MD and accused no.3 was having 20 gms. MD in her purse.
Charge-sheet is filed.

Intermediate quantity of contraband is seized
from the applicant. He has one criminal antecedent. She prayed for
releasing the applicant on bail.
6.

Ld. APP Mr. Erande for the State submitted that there are
total three accused. 15 gms. MD is seized from accused no.1. Disclosure
statement of accused no.1 took the police team to accused no.2 and 3
from whom 55 gms. MD and 20 gms. MD respectively is seized. Total
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90 gms. MD has been seized from all the accused and it is commercial
quantity. Source of contraband is not known. Offence is serious. Wanted
accused is not yet arrested. He prayed for rejection of the bail.
7.

Considering rival submissions and material on record, it
appears that accused no.3 was a lady and she was released on bail
mainly on the ground that her search was conducted in presence of
male police officers and male pancha and WPC had conducted her
search.

Search of present applicant was conducted by PI Dalvi.

Prosecution has not brought on record material to demonstrate that
accused no.1 to 3 were possession contraband in pursuant to their
criminal conspiracy. Accused no.1 is said to have purchased contraband
from accused no.2 & 3. Observations in para 5 & 6 in the case of
Mohammed Rizwan Sayyed v/s. The State of Maharashtra, Criminal B.
A. No. 2476/2023 decided by Hon’ble Bombay High Court on
30.10.2023 are applicable to factual aspect of the case in hand. 15
gms. MD is seized from accused no.1. For want of sufficient material to
establish conspiracy and considering recovery of intermediate quantity
of contraband from the applicant, bar u/s. 37 of the NDPS Act is not
attracted to the case of the applicant. Though the applicant is having
criminal antecedents, material has not come on record to show that he
has been convicted and found guilty. The applicant is resident of
Mumbai. For all these reasons, the applicant is entitled to bail. The
applicant can be released on bail by imposing stringent conditions. He
can be directed to attend the police station for further investigation in
the matter. Hence, I pass the following order :ORDER
1. Bail Application No. 1033/2023 is hereby allowed.
2. Applicant/accused Shadaab Salim Mulla in C. R. No.521/2023 of
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Powai Police Station registered under section 8(c) r/w 22(c) & 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 the trial regularly.
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.
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. Accordingly, BA 1033/2023 is disposed off.

Date : 11.12.2023
(R. R. BHAGWAT)
Special Judge (N.D.P.S.),
City Civil & Sessions Court,
Gr. Bombay (C.R. NO.44)
Dictated on
: 11.12.2023
Transcribed on : 11.12.2023
Signed on
: 11.12.2023
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE
12.12.2023
Name of the Judge
TIME
NAME OF STENOGRAPHER
03.15 p.m.

Mrs. S. W. Tuscano
HHJ Shri R. R. Bhagwat
BA 1033/2023
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(CR No.44)
Date of Pronouncement of
Judgment/Order.
Judgment/order signed by P.O on
11.12.2023
Judgment/order uploaded on
12.12.2023
11.12.2023