Mumbai: In a significant ruling that could impact similar drug-related cases, the Special Judge for NDPS (Narcotic Drugs and Psychotropic Substances) Cases at Greater Mumbai, B.Y. Phad (C.R.44), has granted bail to Raju Shivprasad Sahani, 34, who was arrested on charges of possessing ‘charas’. The order, passed on January 30, 2024, allowed Sahani’s release on a personal bond of Rs. 60,000/- with one or two solvent sureties of the same amount, after the court determined that by excluding the weight of the cello tape wrapper, the quantity of ‘charas’ seized fell below the “commercial quantity” threshold, thus rendering the stringent provisions of Section 37 of the NDPS Act inapplicable.

Sahani was arrested on September 11, 2023, in connection with Crime No. 65/2023, registered with the DCB, CID Unit III, Mumbai, under Sections 20(c), 29, and 8(c) of the NDPS Act, 1985.

According to the prosecution, represented by Mr. Shankar Erande, APP, Sahani was apprehended for possessing 1.007 kilograms of ‘charas’ with the intention of supplying it to co-accused Shiraj Patel. During interrogation, Sahani allegedly disclosed that he procured the contraband from an absconding accused, Nagendra Sahani, who shares his hometown in Uttar Pradesh. The prosecution claimed that Sahani had previously supplied ‘charas’ to Shiraj Mashuk Patel on two occasions. While bail had already been granted to Shiraj Patel, Nagendra Sahani remained at large. The prosecution further highlighted that Raju Shivprasad Sahani had a criminal history with four prior offenses (though not under the NDPS Act) and expressed concerns that granting bail could lead to tampering with evidence, interfering with the prosecution, or exerting undue pressure on witnesses.

Mr. Kiran Gogavale, the learned advocate for the applicant, argued that Sahani was falsely implicated and that the entire prosecution case was baseless. His primary contention revolved around the weight of the seized contraband. Advocate Gogavale asserted that the total weight of 1.007 Kg of ‘charas’ included the cello tape wrapper. He argued that if the weight of this packaging was excluded, the net weight of the substance would fall below 1 kilogram, which is the commercial quantity threshold for ‘charas’.

To support this argument, Advocate Gogavale relied on recent rulings from the Hon’ble Bombay High Court. He specifically cited Criminal Bail Application No. 291 of 2023, Imtiaz Sattar Shaikh Vs. The State of Maharashtra (decided on November 1, 2023), where the contraband Mephedrone was weighed with a plastic bag, and its total weight was 2 grams above the commercial quantity of 50 grams. In that case, the High Court had referred to and relied upon another ruling: Criminal Bail Application No. 2046 of 2023, Mahesh Netraprasad Sharma vs. the State of Maharashtra. In Mahesh Netraprasad Sharma, where ‘charas’ was weighed along with a plastic bag, the Bombay High Court held that the weight of the plastic bag (approximately 10 grams) ought to have been excluded. Based on these precedents, Advocate Gogavale contended that Sahani should be given the benefit of excluding the wrapper’s weight, thereby reducing the quantity to below commercial limits. He further pointed out that no prior case under the NDPS Act had been registered against Sahani, and his client was ready to furnish surety and abide by all bail conditions.

Special Judge B.Y. Phad, after carefully reviewing the submissions and documents, including the FIR, found merit in the defense’s argument regarding the weight calculation. The court explicitly noted that the FIR revealed the weight of two packets was measured “along with their wrapper of cello tape” and that the total weight was 1.007 kg.

The Special Judge stated, “Therefore, in such circumstances, considering the excess weight of 7 gram, which is measured along with the wrapper of the contraband, in my opinion, the benefit of the difference of 10 gm weight as per the ruling cited above of Hon’ble Bombay High Court is required to be given to the applicant and if the said benefit is given to the applicant, the weight of 10 grams is required to be excluded from the total quantity of contraband as measured by the prosecution. Thereby, the weight of the contraband ‘charas’ would be less than one kg. in the case at hand.”

This determination led the court to conclude that “the rigors of section 37 of the Act would not be applicable to the facts of the present case, since the quantity of the contraband falls below the commercial quantity.”

While acknowledging that some IPC crimes were registered against Sahani, the court highlighted the absence of any criminal antecedent pertaining to the NDPS Act. Consequently, the court deemed it proper to release Sahani on stringent conditions.

The bail application (NDPS Bail Application No. 911/2023) was allowed, and Raju Shivprasad Sahani was ordered to be released subject to the following conditions:

1. Executing a personal bond of Rs. 60,000/- along with one or two solvent surety bonds of the same amount.
2. Reporting to the DCB CID Unit III, Mumbai, on the first Monday of every month between 10:00 a.m. and 11:00 a.m. until the final report is filed.
3. Prohibited from leaving the jurisdiction of Uttar Pradesh without explicit permission from the investigating officer or the Court.
4. Strictly prohibited from making any contact with co-accused, witnesses, or individuals associated with the case, and shall not tamper with any evidence or documents.
5. Must maintain a stable residence at his current address in Madhuban, Uttar Pradesh, and inform the court and IO of any change, also providing an active mobile number and reporting any change immediately.
6. Must not interfere with the ongoing investigation and fully comply with law enforcement.
7. Shall surrender his passport, if any, to the Investigating Officer within a week, or file an affidavit stating he does not possess one.
8. Prohibited from engaging in activities related to the registered offense.
9. Must comply with all reasonable directions from law enforcement agencies or investigating officers.
10. Shall furnish a list of three blood relatives with their detailed residential and work addresses and documentary proofs.

Failure to adhere to any of these conditions will result in the immediate revocation of bail and further legal consequences. The order was signed by Special Judge B.Y. Phad on February 1, 2024, and uploaded on the same date.