Mumbai, Maharashtra – A Special Judge for Narcotic Drugs and Psychotropic Substances (NDPS) Cases in Greater Mumbai has rejected the bail application of Moin Riyaz Khan, a 20-year-old businessman from Govandi, Mumbai. Khan was arrested by Deonar Police Station for offenses punishable under sections 8(c) read with section 22 of the NDPS Act, 1985, after being found in possession of 43 bottles of cough syrup containing Codeine Phosphate.

The Bail Application No. 926 of 2023 was heard by Special Judge Shri R. R. Bhagwat (C.R.44), who pronounced the order on November 9, 2023.

The prosecution’s case, presented by learned A.P.P. Mr. Shankar Erande, stated that on August 29, 2023, at about 8:30 PM, a patrolling team from Deonar Police Station observed Moin Riyaz Khan acting suspiciously with a white bag. After informing Night PI Anagha Satvase, who arrived at the scene, a search was conducted in the presence of two panchas. This led to the recovery of 43 Federex cough syrup bottles, each containing 100 ml of Chlorpheniramine Maleate & Codeine Phosphate Syrup. These bottles were seized, and Khan was subsequently arrested.

Learned Counsel Mr. Subhash Kewat, representing the applicant, argued that Khan was falsely implicated and that the FIR’s narrative was “concocted.” He claimed that the arrest was made from Khan’s house, implying the recovery was “planted.” The defense also raised concerns about non-compliance with Section 50 of the NDPS Act (which mandates certain procedures for personal searches), asserted that no recovery was made before independent witnesses at a public place, and alleged non-compliance with Section 157 of the Cr.P.C. Mr. Kewat stressed that the bar under Section 37 of the NDPS Act (which imposes strict conditions for bail in cases involving commercial quantities) should not apply, as Khan is a young individual with no criminal antecedents and a permanent resident of Mumbai.

In response, learned A.P.P. Mr. Shankar Erande contended that the seized quantity of 43 cough syrup bottles, totaling 4300 ml (or 4.3 kg by weight), constitutes a commercial quantity. He referred to Entry No. 239 in the Notification dated October 19, 2001, and relied on the Hon’ble Supreme Court’s observations in the case of Hira Singh & Another v/s. Union of India and another (2020) 20 SCC 272. This judgment clarifies that the total weight of a mixture or solution, including neutral substances, must be considered when determining whether the quantity is “small” or “commercial.” Mr. Erande emphasized that Khan had no license or receipt for possessing such a large quantity of controlled substance, highlighting the seriousness of the offense. He also pointed out that a wanted accused in the case had not yet been apprehended, suggesting that granting bail could hamper the ongoing investigation.

After a thorough review of the records and arguments, the court found that the total weight of the seized cough syrup solution was above 1 kg, making it a commercial quantity according to relevant notifications and the precedent set in the Hira Singh case.

The court concluded that since a commercial quantity of contraband was seized from the accused, the bar under Section 37 of the NDPS Act is attracted. This statutory provision imposes a strict hurdle for granting bail, requiring the court to 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 court noted that the investigation was still at an initial stage, and granting bail could adversely affect further investigative efforts. The gravity of the offense and the prescribed punishment were cited as additional factors influencing the decision to deny bail.

Consequently, Bail Application No. 926/2023 was rejected, and the application was disposed of accordingly.