NDPS BA No.832/2023
..1..

in Special Case No.1684/2023
MHCC020142352023
Presented on
: 20-09-2023
Registered on : 20-09-2023
Decided on
: 02-11-2023
Duration
: 01 M, 13 Days
IN THE SPECIAL COURT FOR NARCOTIC DRUG AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
NDPS BAIL APPLICATION NO.832 OF 2023
IN
NDPS REMAND APPLICATION NO.981 OF 2023
IN
SPECIAL CASE NO.1684 OF 2023
Mr. Yusif Hasim Shaikh
Aged : 37 years, Occ:
R/at : Room No.91, Tukaram Chawl,
Rani Sati Raod, Malad (East), Mumbai.

)
)
)
) .. Applicant/accused No.2
V/s.
The State of Maharashtra
)
(At the instance of ANC Ghatkopar Unit, )
Mumbai, vide C.R. No.33/2023)
) .. Respondent/Prosecutor
Appearance :
Ld. Adv. Mr. Hardik Singh, for the applicant/accused.
Ld. APP Mr. P.J. Tarange, for the respondent/prosecution.

NDPS BA No.832/2023
..2..

in Special Case No.1684/2023
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 No.2
Mr. Yusif Hasim Shaikh under section 439 of Code of Criminal
Procedure for enlarging him on bail in C.R. No.33/2023 registered at
ANC Ghatkopar Unit, Mumbai (now Special Case No.1684/2023) 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, reply of
the prosecution and the record of Special Case No.1684/2023. Heard,
arguments advanced by Ld. Advocate for the applicant/accused No.2
and learned APP.
3.

Learned Advocate for applicant/accused no.2 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 C.R. No.33/2023. Learned
Advocate for applicant/accused argued that, as per prosecution case on
21/04/2023 co-accused No.1 Tasrif Sabir Beg @ Pailwan was found in
suspicious condition and in his personal search 112 gram Mephedrone
(MD) was recovered. During the investigation the co-accused No.1
disclosed that, he had procured the said contraband from the
applicant/accused. Therefore, present applicant/accused is arrested on
28/07/2023 and the offences punishable under section 8(c) r/w section
NDPS BA No.832/2023
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in Special Case No.1684/2023
22(c) and section 29 of the NDPS Act is registered against the
applicant/accused.

Applicant/accused
is
falsely
implicated.

Applicant/accused is impleaded as accused only on basis of the
statement of the co-accused No.1. There is no positive material on
record which indicates nexus between the applicant/accused and the
co-accused. Applicant/accused is resident of Mumbai. He is ready to
abide all terms and 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, on 21/04/2023 in
the personal search of the co-accused No.1 Tasrif Sabir Beg @ Pailwan,
112 gram Mephedrone (MD) was recovered and during investigation it
revealed that, the co-accused No.1 had procured the said contraband
from the present applicant/accused and the applicant/accused were
jointly doing the drug trafficking. There is positive material on record
which indicates the nexus between the applicant/accused and the coaccused and they had hatched conspiracy for drug trafficking. The
quantity of contraband is recovered from the possession of the coaccused No.1 and the investigation reveals the involvement and
conspiracy between co-accused and the applicant/accused. Considering
the quantity of contraband recovered rigours of section 37 of NDPS Act
are applicable to the present case. Moreover, rigours of section 37 of the
NDPS Act are also applicable. Applicant/accused has not demonstrated
any material to show that there are grounds to believe that
applicant/accused is not guilty of offence alleged to have been
committed by him. From appreciation of material on record there
appear reasonable grounds to believe that applicant/accused is guilty of
the offence alleged to be committed by him. Investigation is pending. If
NDPS BA No.832/2023
the
applicant/accused
..4..

is
release
in Special Case No.1684/2023
at
this
stage,
then
the
applicant/accused may hamper the investigation. Therefore, Ld. APP
submitted that, application be rejected.
5.

The applicant/accused is alleged to have committed offence
punishable 8(c) r/w section 22(c) and section 29 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 punishment is provided for the same. Considering fact that
commercial quantity of contraband is recovered from the conscious
possession of the co-accused No.1 and nature of offences 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.

The quantity of contraband recovered from the co-accused
No.1 is a commercial quantity. From prima facie appreciation of
material on record, it reveals that, the applicant/accused is a drug
NDPS BA No.832/2023
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in Special Case No.1684/2023
peddler and involved in the sale of the contraband. The statement of coaccused No.1 is admissible for the purpose of investigation. From the
CDR analysis of mobiles of applicant/accused and co-accused it appears
that, both the accused were in contact with each other. Considering the
matter on record prima facie 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 No.1 has no
any nexus and they have not hatched any conspiracy.
8.

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, she is not guilty of the offence alleged. However, the
applicant/accused has not demonstrated any reasonable grounds to
believe that, she 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) and section 29 of 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 and the co-accused No.1 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 and
therefore, embargo put by section 37 of NDPS act is not lifted.
9.

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
NDPS BA No.832/2023
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in Special Case No.1684/2023
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.
10.

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.
11.

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.832/2023 of applicant/accused No.2
Mr. Yusif Hasim Shaikh in C.R. No.33/2023 in Special Case
No.1684/2023, is rejected.

2.

NDPS Bail Application No.832/2023 is disposed of accordingly.
(Pronounced in open Court)
KIRAN
PRAKASH
KSHIRSAGAR
Date : 02/11/2023.

Digitally signed by
KIRAN PRAKASH
KSHIRSAGAR
Date: 2023.11.06
13:38:01 +0530
(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
:
03/11/2023
NDPS BA No.832/2023
..7..

in Special Case No.1684/2023
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE
06.11.2023
TIME
NAME OF STENOGRAPHER
01.10 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 03/11/2023
Judgment/order uploaded on
06/11/2023