Mumbai, November 7, 2023 – The Special Judge for NDPS Cases at Greater Mumbai today granted bail to Dilipkumar Santram Kanojia, also known as Chotu, 27, in a case involving the seizure of Codeine Phosphate cough syrup bottles. Special Judge Shri R. R. Bhagwat, presiding over Courtroom No. 44, allowed the bail application, citing concerns over the legality of the search conducted by the police officer.

Kanojia, a resident of Shivaji Nagar, Govandi, Mumbai, was arrested in connection with C.R. No. 773/2023 registered at Shivaji Nagar Police Station for offenses under Sections 8(c) read with 22 and 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. These sections deal with the prohibition of certain activities related to narcotic drugs and psychotropic substances, punishment for contravention in relation to psychotropic substances, and punishment for abetment and criminal conspiracy, respectively.

The Prosecution’s Allegations

According to the prosecution, on August 30, 2023, Assistant Police Inspector Krushna Dighe and other officers from Shivaji Nagar Police Station were on patrolling duty. Around 12:30 AM, near Budha Vihar, Shivaji Nagar, Govandi, they observed Kanojia and another person, Sirajuddin Janmohammad Shaikh (accused no. 2), acting suspiciously while holding black plastic bags. Upon questioning, they reportedly gave evasive answers and attempted to flee, leading to their apprehension.

The police then called for panchas and sealing material. During the subsequent search, conducted by Head Constable Turai as per the directions of PI Gavshete, Kanojia was allegedly found in possession of 12 sealed bottles of Chlorpheniramine Maleate & Codeine Phosphate Syrup (100 ml each, containing 10 mg Codeine). He also had a Redmi 5G mobile phone and Rs. 1,200 in cash. Simultaneously, from co-accused Sirajuddin Janmohammad Shaikh, 13 sealed bottles of the same cough syrup were reportedly recovered. All items were seized, and both accused were arrested.

Defense Highlights Procedural Flaw

Mr. Ganesh Shinde, the learned advocate for Kanojia, argued that his client was falsely implicated and had no involvement in the alleged offense. He contended that Kanojia did not have any contraband in his hand when apprehended but was merely speaking with co-accused No. 2. Mr. Shinde stressed that the recovery had been completed, and Kanojia had been in custody for over 60 days. He stated that the quantity recovered from Kanojia (12 bottles) falls under “non-commercial quantity” under the NDPS Act. He also highlighted that Kanojia has no criminal antecedents and is a permanent resident of Mumbai, willing to abide by all bail conditions.

Crucially, Mr. Shinde raised doubts about how the police officers concluded that the suspects possessed narcotic drugs.

Prosecution Cites Commercial Quantity

In opposition, learned APP Mr. Shankar Erande argued that a total of 25 cough syrup bottles were seized from both accused, and citing the Supreme Court’s authority in Hira Singh V/s. Union of India, he asserted that the entire mixture must be considered, making the seized contraband a “commercial quantity.” He also mentioned that another accused, “Rahul,” had not yet been arrested. Mr. Erande contended that Kanojia failed to produce any valid license or bill for possessing the contraband and reiterated the seriousness of the offense, praying for bail rejection.

Court’s Reasoning for Granting Bail

After considering the arguments and reviewing the material on record, Judge Bhagwat noted that both accused were found with cough syrup bottles. However, the court identified a significant procedural flaw: “Search of both accused is conducted by the HC Turai, who is not empowered officer within meaning of sec. 42 (1) of the NDPS Act. Therefore, search is vitiated.”

Section 42(1) of the NDPS Act specifies that search, seizure, and arrest without warrant in public places can only be conducted by an officer not below the rank of Gazetted Officer or Sub-Inspector of Police. Since Head Constable Turai did not meet this criteria, the legality of the search was compromised.

Given this vitiation of the search procedure, the court determined that the rigors of Section 37 of the NDPS Act (which typically makes bail difficult for commercial quantity offenses) would not apply to Kanojia’s case.

Further, the court acknowledged that Kanojia has no criminal antecedents and is a permanent resident of Mumbai. Based on these considerations, Judge Bhagwat concluded that Kanojia could be released on bail, albeit with stringent conditions.

Bail Conditions

The court allowed Bail Application No. 930/2023, directing Dilipkumar Santram Kanojia @ Chotu to be released on:

• Executing a P.R. Bond of Rs. 30,000/- (Rupees Thirty Thousand only) with one or two sureties of the like amount.
• Provisional cash bail of Rs. 30,000/- for four weeks from the date of the order, pending the furnishing of sureties.
• Attending Shivaji Nagar Police Station every Tuesday between 11:00 AM to 02:00 PM until the charge-sheet is filed.
• Providing his mobile number, correct residence address, and names/contact details of two relatives.
• Producing proof of identity and residence at the time of executing the bail bond.
• Not tampering with prosecution witnesses/evidence and cooperating in the early disposal of the trial.
• Not committing similar offenses while on bail.

The application stands disposed of accordingly. The ruling highlights the importance of strict adherence to procedural safeguards under the NDPS Act, failure of which can significantly impact the prosecution’s case.