Mumbai, Maharashtra – In a significant development, the Special Judge for NDPS Cases at Greater Mumbai, Shri R. R. Bhagwat (C.R.44), granted bail to Shadaab Salim Mulla (46) in Bail Application No. 1033 of 2023 on December 11, 2023. Mulla was arrested in connection with C. R. No. 521/2023 registered at Powai Police Station under sections 8(c) read with 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

The court’s decision hinged on the recovery of an intermediate quantity (15 grams) of MD from Mulla, the lack of sufficient evidence to establish a criminal conspiracy with other co-accused from whom commercial quantities were seized, and the inapplicability of the stringent Section 37 of the NDPS Act in this specific instance.

The Prosecution’s Case

According to the prosecution, on September 5, 2023, at approximately 2:30 PM, informant HC Shishupal Paratkar and other police staff observed Shadaab Salim Mulla in a suspicious condition with a black plastic bag near Budha Vihar Compound, Gautam Nagar, Powai. Following due procedure, a search was conducted, leading to the recovery of 15 grams of MD from a transparent plastic bag inside the black plastic bag Mulla was carrying.

Mulla’s disclosure statement subsequently led the police to accused no. 2, Mosin Yasin Khan, and accused no. 3, Fahmida Mosin Khan. From Mosin Khan, 55 grams of MD and cash of Rs. 45,000/- were seized, while 20 grams of MD was recovered from Fahmida Khan’s purse. All three were arrested after the registration of the offence. The prosecution argued that the total seizure of 90 grams of MD from all accused constituted a commercial quantity, warranting the rejection of bail, and also highlighted the fact that the source of the contraband was unknown and a wanted accused was yet to be arrested.

Applicant’s Arguments for Bail

Ms. Alisha Parekh, the learned counsel representing Shadaab Salim Mulla, argued that her client was innocent and falsely implicated. She emphasized that only 15 grams of MD, an intermediate quantity, was recovered from Mulla, thus the rigors of Section 37 of the NDPS Act were not attracted to his case.

Crucially, Ms. Parekh contended that Mulla had no connection with the alleged recovery of commercial quantities of contraband from co-accused Mosin Yasin Khan and Fahmida Mosin Khan. She pointed out that Mosin Khan was attributed the role of the supplier, not Mulla. She also brought to the court’s attention that co-accused Fahmida Mosin Khan had already been granted bail on November 6, 2023, in B.A. No. 883/2023.

Ms. Parekh cited several precedents, including:

• Birbal Prasad v/s. State of Bihar (2018) 11 SCC 488, where bail was granted for an intermediate quantity of contraband.
• Mehul Harish Makhwana v/s. The State of Maharashtra, Criminal B. A. No. 289/2022.
• Gautam Dilip Datta v/s. The State of Maharashtra, Criminal B. A. No. 3535/2022, concerning long incarceration periods.
• Mohammed Arif Mohammed Shafi v/s. The State of Maharashtra, Criminal B. A. No. 3170/2022, regarding bail for non-commercial quantity after over one year and three months of custody.

She further submitted that a charge-sheet had been filed and while Mulla had one criminal antecedent, there was no record of conviction.

Court’s Observations and Decision

Special Judge R. R. Bhagwat carefully considered the rival submissions and the material presented. The court noted that accused no. 3, Fahmida, a lady, was released on bail primarily because her search was conducted in the presence of male police officers and a male pancha, despite a WPC conducting her search.

Crucially, the court found that the prosecution had not presented sufficient material to demonstrate a criminal conspiracy between Mulla and the co-accused regarding the possession of contraband. The court observed that Mulla was alleged to have purchased contraband from accused no. 2 and 3, not to be part of a larger distribution network.

Referring to the observations in paragraphs 5 and 6 of Mohammed Rizwan Sayyed v/s. The State of Maharashtra, Criminal B. A. No. 2476/2023, decided by the Bombay High Court on October 30, 2023, the court concluded that these observations were applicable to the factual aspects of the present case. Given that only 15 grams of MD was seized from Mulla, and in the absence of material establishing a conspiracy, the court ruled that the bar under Section 37 of the NDPS Act was not attracted to Mulla’s case.

While acknowledging Mulla’s criminal antecedents, the court noted that there was no record of conviction. The court also considered that Mulla is a resident of Mumbai.

Based on these reasons, the court determined that Mulla was entitled to bail, albeit with stringent conditions.

Bail Conditions

Shadaab Salim Mulla has been granted bail on the following conditions:

1. He shall execute a Personal Recognizance (P. R.) Bond of Rs. 40,000/- with one or two sureties in the like amount.
2. He must attend the trial regularly.
3. He and his sureties must provide their mobile numbers and correct residential addresses, along with the names, mobile numbers, and addresses of two relatives.
4. He must produce proof of identity and proof of residence at the time of executing the bail bond.
5. He shall not tamper with prosecution witnesses/evidence and must cooperate in the early disposal of the trial.
6. He shall not commit similar offences while on bail.
7. Upon request of his advocate, Mulla has been granted provisional cash bail of Rs. 40,000/- for the next four weeks from the date of the order.

The Bail Application No. 1033/2023 was disposed of accordingly. The order was dictated, transcribed, and signed on December 11, 2023, and uploaded on December 12, 2023.

Implications of the Ruling

This ruling underscores the importance of individual assessment in NDPS cases, particularly concerning the quantity of contraband seized from each accused and the evidence linking them to a larger conspiracy. The court’s emphasis on the lack of material to establish a conspiracy, despite the collective recovery of a commercial quantity from multiple accused, highlights the nuanced application of Section 37 of the NDPS Act. It also reiterates that mere disclosure statements without corroborating evidence may not be sufficient to deny bail, especially when the directly recovered quantity from an individual falls under the intermediate category.