Mumbai, March 1, 2024 – The Special Court for Narcotic Drug and Psychotropic Substances Act, 1985, at Greater Bombay, has rejected the bail application of Afsar Jalil Mohammed Khan alias Afsar Jalil Ahmed Khan (55) in connection with a case involving the alleged recovery of commercial quantities of Codeine Phosphate syrup. The order, issued by Additional Sessions Judge K.P. Kshirsagar, highlighted the serious nature of the offense and the applicability of the stringent provisions of Section 37 of the NDPS Act.
Khan, a businessman residing in Mahim, Mumbai, had sought bail under Section 439 of the Code of Criminal Procedure in Spl. LAC/C.R. No.684/2023, registered at Shivaji Nagar Police Station. He faces charges under Section 8(c) read with Section 22(b) of the NDPS Act.
Prosecution’s Case and Defense Arguments
According to the prosecution, on August 5, 2023, 22 grams of Mephedrone (MD) were allegedly recovered from co-accused No. 1, Abdul Faizan Ezaz Shaikh. Subsequently, based on Khan’s disclosure statement, 23 bottles of Codeine Phosphate & Triprolidine Hydrochloride syrup (100 ml Similex Cough Syrup) were allegedly recovered at his instance. The prosecution argued that the quantity of Codeine Phosphate recovered constituted a commercial quantity, thereby invoking the rigorous conditions for bail under Section 37 of the NDPS Act. Ld. APP Mr. P.J. Tarange contended that investigation against Khan was still pending and that he had not provided reasonable grounds to believe he was not guilty.
Ld. Adv. Mr. Ajay Dubey, representing Khan, argued that this was his client’s first bail application and that no other similar application was pending or had been rejected by a superior court. He asserted that Khan had no connection with co-accused Nos. 1 and 2 and was falsely implicated, possibly due to various complaints he had filed with the police commissioner. Mr. Dubey emphasized that Khan was a Mumbai resident with no prior criminal record and was willing to abide by any conditions imposed by the court. He cited the case of Iqbal Singh Vs. State from the Delhi High Court in support of the bail plea.
Court’s Observations and Rejection of Bail
Judge Kshirsagar, after perusing the application, documents, prosecution’s reply, and hearing both sides, observed that a prima facie case under Section 8(c) read with Section 22(c) of the NDPS Act was made out against Khan, an offense that carries a potential punishment of up to 20 years and a fine of up to Rs. 1 lakh.
The court heavily relied on Section 37(2) of the NDPS Act, which imposes stringent limitations on the grant of bail in cases involving commercial quantities of contraband. The judge noted that these limitations are “in addition to the limitations under the Code of Criminal Procedure” and are incorporated “to check the menace of drugs flooding the market and in order to effectively control and eradicate menace of drug.”
The court stated that for bail to be granted in such cases, “twin conditions under clause (b) of sub section (1) of NDPS Act must be satisfied,” meaning the court must be satisfied that there are reasonable grounds to believe the accused is not guilty and that they are unlikely to commit any offense while on bail. The judge emphasized that “negation of bail is rule and grant of bail is exception under above clause.”
The order further stated that:
- Commercial quantity of contraband (Codeine Phosphate) was recovered at Khan’s instance.
- Investigation pertaining to Khan was still pending, despite the final report against co-accused Nos. 1 and 2. The court noted that “statement of the co-accused is admissible for the purpose of investigation,” indicating a prima facie nexus between Khan and the co-accused.
- Khan “has not demonstrated any reasonable grounds to believe that, he has not committed the offence alleged.”
- Given the “nature of offence and the matter on record and the fact that, huge quantity of contraband was recovered,” the court was “not satisfied that, the applicant/accused will not commit the similar offence again.”
- The court also expressed concern that releasing Khan could lead to him tampering with prosecution evidence, influencing witnesses, or re-engaging in similar offenses.
Consequently, the court concluded that the conditions under Section 37 of the NDPS Act were not fulfilled, and the embargo imposed by the section was not lifted. Judge Kshirsagar observed that “liberal approach in grant of bail in such kind of offences under NDPS Act is also uncalled.”
The NDPS Bail Application No.984/2023 was accordingly rejected and disposed of. The order was pronounced in open court on March 1, 2024, dictated and transcribed on the same day, checked on March 2, 2024, and signed by the judge on March 4, 2024. It was uploaded on March 5, 2024.