NDPS BA No.899/2023
..1..

in NDPS RA No.965/2023
MHCC020152682023
Presented on
: 10-10-2023
Registered on : 10-10-2023
Decided on
: 02-11-2023
Duration
: 22 Days
IN THE SPECIAL COURT FOR NARCOTIC DRUG AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
NDPS BAIL APPLICATION NO.899 OF 2023
IN
NDPS REMAND APPLICATION NO.965 OF 2023
Shams Tabrej Mehboob Badshah Sayyed
@ Shams Tabrej Mehboob Badshah
Sayyad
Aged : 33 years, Occ: Service
R/at : MHADA Vasahat Building No.
2/3, Room No. 208, Natwarlal Parekh
Compound, Shivaji Nagar, Govandi,
Mumbai.

)
)
)
)
)
)
)
) .. Applicant/Accused
V/s.
The State of Maharashtra
(At the instance of Shivaji Nagar police
station, Mumbai, vide Spl. LAC/C.R.
No.636/2023).

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

NDPS BA No.899/2023
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in NDPS RA No.965/2023
CORAM : K.P. KSHIRSAGAR
ADDL. SESSIONS JUDGE (C.R.43)
DATE
: 02/11/2023
ORAL ORDER
This is an application taken out by applicant/accused
Shams Tabrej Mehboob Badshah Sayyed @ Shams Tabrej Mehboob
Badshah Sayyad under section 439 of Code of Criminal Procedure for
enlarging him on bail in Spl. LAC/C.R. No.636/2023 registered at
Shivaji Nagar police station, Mumbai for the offences punishable under
section 8(c) r/w section 22(c) 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.636/2023.
Learned Advocate for applicant/accused argued that, as per prosecution
case on 20/07/2023, 12 bottles of 100 ml each containing
Chlorpheniramine Maleate & Codeine Phosphate syrup PHENSIREST
were recovered from the conscious possession of the applicant/accused.
Applicant/accused was possessing for same for the purpose of sale. The
applicant/accused disclosed that, he had procured the said contraband
from the co-accused and therefore, co-accused was also arrested.

NDPS BA No.899/2023
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in NDPS RA No.965/2023
Therefore, offence punishable under section 8(c) r/w section 22(c) and
section 29 of NDPS Act is registered against the applicant/accused and
the co-accused. There is no material on record to show that, from the
scooter of applicant/accused 10 bottles of Codeine Phosphate syrup
were recovered and applicant/accused was having conscious possession
of the same. Applicant/accused is arrested on 20/07/2023. The
applicant/accused
is
not
having
any
criminal
antecedents.

Applicant/accused is resident of Mumbai. 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, 12 bottles of 100
ml each containing Chlorpheniramine Maleate & Codeine Phosphate
syrup PHENSIREST were recovered from the possession of the
applicant/accused and during investigation he revealed that, he had
procured the said contraband from the co-accused. There is positive
evidence/material on record which indicates nexus/link between the
applicant/accused and co-accused. Therefore, section 29 of the NDPS
Act is applicable. Moreover, quantity of contraband recovered from the
applicant/accused is commercial quantity. Therefore, rigours of section
37 of the NDPS Act are also applicable. Investigation is pending. Release
of the applicant/accused at this stage may hamper the investigation.
Applicant/accused has not satisfied the conditions under section 37 of
the NDPS Act. 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
NDPS BA No.899/2023
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in NDPS RA No.965/2023
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 commercial
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
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.
6.

The quantity recovered in present crime is commercial
quantity. Therefore, rigours of section 37 of NDPS Act are applicable. As
per mandate of section 37 of NDPS Act burden to show that there are
reasonable grounds to believe that applicant/accused is not guilty of
offence is upon applicant/accused. However, applicant/accused did not
demonstrate that there are grounds to believe that he is not guilty of
offence alleged. 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 the similar offence again. As such
conditions under section 37 of NDPS Act are not fulfilled. Therefore,
embargo put by section 37 of NDPS act is not lifted.
7.

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
NDPS BA No.899/2023
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in NDPS RA No.965/2023
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.
8.

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
this stage prima facie applicant/accused also failed to demonstrate that,
he is not involved in the crime.
9.

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.
10.

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
NDPS BA No.899/2023
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in NDPS RA No.965/2023
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.899/2023 of applicant/accused Shams
Tabrej Mehboob Badshah Sayyed @ Shams Tabrej Mehboob
Badshah Sayyad in Spl. LAC/C.R. No.636/2023 in NDPS RA
No.965/2023, is rejected.

2.

NDPS Bail Application No.899/2023 is disposed of accordingly.
(Pronounced in open Court)
Digitally signed
by KIRAN
PRAKASH
KIRAN
KSHIRSAGAR
PRAKASH
KSHIRSAGAR Date:
2023.11.06
13:33:23 +0530
Date : 02/11/2023.

(K.P. Kshirsagar)
N.D.P.S Special Judge
City Civil & Sessions Court,
Gr. Bombay (CR.43)
Dictated on
:
02/11/2023
Transcribed on
:
02/11/2023
Checked on
:
02/11/2023
Signed on
:
04/11/2023
NDPS BA No.899/2023
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in NDPS RA No.965/2023
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE
06.11.2023
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.

02/11/2023
Judgment/order signed by P.O
on
04/11/2023
Judgment/order uploaded on
06/11/2023