Mumbai, Maharashtra – The Special Court for Narcotic Drug and Psychotropic Substances (NDPS) Act, 1985, at Gr. Bombay, has rejected the bail application of Mohammad Sohrab Ismail Khan alias Acchu, aged 29, a businessman residing in Govandi, Mumbai. The application, NDPS BA No. 1040/2023, was dismissed by Additional Sessions Judge (C.R.43) K.P. Kshirsagar on December 22, 2023.

Mohammad Sohrab Ismail Khan was seeking bail under Section 439 of the Code of Criminal Procedure in connection with Special LAC/C.R. No. 140/2023, registered at Shivaji Nagar police station, Mumbai. He is accused of offences punishable under section 8(c) read with section 22(b) and section 29 of the NDPS Act, concerning the illegal possession, sale, and criminal conspiracy involving psychotropic substances.

The case originated on February 3, 2023, when 20 grams of Mephedrone (MD) were recovered from co-accused Mehtab Noor Mohd Iqbal Shaikh alias Totala. During interrogation, Totala allegedly disclosed that an individual named Munna had introduced him to co-accused Jabir alias Sonu DX, and that he, along with Munna and others, were involved in selling contraband for Sonu DX, receiving Rs. 500 per day for the sale of MD.

Subsequently, co-accused Jabir alias Sonu DX was arrested on May 15, 2023. At his instance, 56 grams of Mephedrone (MD) were recovered from a location he indicated. During the investigation, Sonu DX reportedly revealed that the present applicant, Mohammad Sohrab Ismail Khan, is his brother-in-law and was involved in the business of selling Mephedrone (MD), supplying the substance to Sonu DX for further sale. Consequently, the NDPS Act charges were registered against both the applicant and the co-accused. Mohammad Sohrab Ismail Khan was arrested on August 14, 2023.

During the bail hearing, Learned Advocate Ms. Munira Palanpurwala, representing the applicant, argued that this was the first bail application and no other similar application was pending in any higher court. She contended that the applicant was falsely implicated, stating that his arrest was solely based on the co-accused’s statement, which she argued is inadmissible in evidence. Furthermore, she highlighted that no contraband was recovered directly from Mohammad Sohrab Ismail Khan. She also asserted the absence of any positive material to establish a nexus or conspiracy between the applicant and the co-accused. The defense pointed out that a charge-sheet had already been filed against co-accused Nos. 1 and 2 and that the applicant, being a resident of Mumbai, was ready to abide by all court-imposed conditions.

Learned APP Mr. Rajput, representing the prosecution, countered by stating that the initial recovery of 20 grams of MD from co-accused No.1 and the subsequent recovery of 56 grams of MD at the instance of co-accused No.2 amounted to a commercial quantity. He emphasized that co-accused No.2’s disclosure implicated the applicant, stating that the applicant, who is his brother-in-law, used to supply him with Mephedrone (MD) for sale. Mr. Rajput argued that the material on record indicated a positive evidence of conspiracy between the applicant and the co-accused, and that a co-accused’s statement is admissible for the purpose of investigation. He maintained that Section 29 of the NDPS Act (criminal conspiracy) was applicable to the applicant’s case, and since a commercial quantity was recovered, the rigors of Section 37 of the NDPS Act applied. He further stressed that the investigation pertaining to the applicant was ongoing, and his release at this stage could impede further investigation. Mr. Rajput concluded that the applicant had failed to demonstrate reasonable grounds to believe he was not guilty, thus failing to satisfy the conditions under Section 37 of the NDPS Act.

After considering the arguments and the material on record, the court observed that a prima facie case for offenses under section 8(c) read with section 22(c) and section 29 of the NDPS Act was made out against the applicant. The court noted that the 56 grams of MD recovered from co-accused No.2 constituted a commercial quantity, and that the co-accused’s statement implicating the applicant was admissible for investigation purposes. The court highlighted that in cases of conspiracy, conduct and communication between conspirators, as evident from the record, are relevant under Section 10 of the Evidence Act to prove the conspiracy. It further stated that once a prima facie link is established, the onus shifts to the applicant to rebut the presumption under the NDPS Act, and merely because no contraband was recovered from the applicant directly was not sufficient to demonstrate his innocence. The court found that the applicant had not provided material to rebut this presumption, leading to the prima facie applicability of Section 29 of the NDPS Act.

The court reiterated that under Section 37 of the NDPS Act, the burden is on the applicant to demonstrate reasonable grounds to believe he is not guilty and that he is unlikely to commit a similar offence. The court concluded that the applicant failed to meet these conditions. It found reasonable grounds to believe the applicant committed the alleged offence and, considering the nature and quantity of contraband recovered from the co-accused, was not satisfied that the applicant would not commit similar offences again.

Furthermore, the court noted that the investigation was still incomplete and expressed concern that releasing the applicant could lead to tampering with evidence, influencing witnesses, or involvement in further criminal activities. The court emphasized that a “liberal approach in grant of bail in such kind of offences under NDPS Act is also uncalled.”

Based on these findings, the court determined that there were no justifiable grounds for releasing Mohammad Sohrab Ismail Khan on bail at this stage, concluding that his release would likely be prejudicial to the interest of society at large. Therefore, the bail application was rejected.