Mumbai, Maharashtra – A Special Court for Narcotic Drugs and Psychotropic Substances (NDPS) cases in Greater Mumbai has rejected the bail application of Naved Jahangir Sayyed, 19, who was arrested along with a co-accused in connection with the seizure of 135 bottles of Codeine Phosphate cough syrup. The court classified the seized quantity as “commercial,” thereby invoking the stringent bail provisions under Section 37 of the NDPS Act.

Special Judge R.R. Bhagwat (C.R.44) issued the order on November 9, 2023, in Bail Application No. 901 of 2023. Sayyed, along with co-accused Owesh Yusuf Shaikh, was booked by Antop Hill Police Station under C.R. No. 318/2023 for offenses punishable under sections 8(c) and 22(c) of the NDPS Act, 1985.

Prosecution’s Case: Patrolling Leads to Seizure

According to the prosecution, represented by Ld. APP Mr. Shankar Erande, on September 7, 2023, at approximately 2:50 AM, during patrolling duty, HC Rameshwar Andhale and his police staff observed two individuals, accused no.1 Owesh Yusuf Shaikh and accused no.2 Naved Jahangir Sayyed, carrying a white bag in the Antop Hill area.

Upon questioning, they gave evasive answers, leading police to suspect the bag contained contraband. Two panchas (independent witnesses) were called to the spot, and both accused were informed of their rights under Section 50 of the NDPS Act. A search of the white bag resulted in the seizure of 135 cough syrup bottles of Phensirest Company, each 100 ml, containing Chlorpheniramine Maleate & Codeine Phosphate. The bottles were seized under a panchanama, and as the accused could not provide details of the contraband’s source, they were arrested.

Applicant’s Arguments for Bail

Mr. Taraq Sayed, the learned counsel for Naved Jahangir Sayyed, argued that his client was innocent and falsely framed. He contended that the seized 135 bottles constituted an intermediate quantity, meaning the rigors of Section 37 of the NDPS Act (which restricts bail for commercial quantities) were not attracted. He cited several Supreme Court and High Court precedents where bail was granted for intermediate quantities or due to long incarceration.

Mr. Sayed further submitted that since two accused were found at the spot, the prosecution was unsure who was carrying the contraband. He emphasized that the commercial quantity of codeine is 1 kg, and cough syrup, being liquid, is not weighed. He argued that the concentration of the substance is relevant, and since codeine is an opium derivative (as per Section 2(xvi)(e) of the NDPS Act, referring to preparations containing more than 0.2% Morphine), the entire volume of the cough syrup should not be considered for determining the quantity. He distinguished the present case from the Supreme Court’s ruling in Hira Singh & Another v/s. Union of India and another (2020), stating it was not applicable.

Prosecution’s Opposition

Ld. APP Shankar Erande countered that it was a patrolling case, and 135 bottles were found in the bag. He stated that while Section 50 was not strictly applicable to the bag’s search, it was followed out of caution. He alleged that the applicant is a “habitual offender” and that a “wanted accused” is yet to be arrested. He stressed that the applicants did not possess any license or bills for such a large quantity of cough syrup.

Crucially, Mr. Erande relied heavily on the Hira Singh judgment (2020) and Entry No. 239 in the Notification dated October 19, 2001, arguing that the entire mixture or solution of the contraband must be considered when determining the quantity. He asserted that the seized quantity was commercial, and therefore, the bar under Section 37 of the NDPS Act was attracted, necessitating the rejection of bail.

Court’s Analysis and Decision

Special Judge R.R. Bhagwat carefully perused the record and considered the arguments. The court noted that the 135 bottles, each containing 100 ml of cough syrup, amounted to a total of 13500 ml. The judge explicitly stated: “Therefore, weight of seized cough syrup solution was certainly above 1 kg.”

The court then directly applied the principles laid down in Hira Singh & Another v/s. Union of India and another (2020) 20 SCC 272, specifically quoting paragraphs 10.4 and 12.2:

• 10.4: “Even considering the definition of ‘manufacture’, ‘manufactured drug’ and the ‘preparation’ conjointly, the total weight of such ‘manufactured drug’ or ‘preparation’, including the neutral material is required to be considered while determining small quantity or commercial quantity… Any other intention to defeat the object and purpose of enactment of the NDPS Act viz. to the Act is deterrent.”
• 12.2: “In case of seizure of mixture of narcotic drugs or psychotropic substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the ‘small or commercial quantity’ of the narcotic drugs or psychotropic substances.”

Based on this interpretation, the court concluded: “In the light of above discussion, seized contraband is commercial quantity. Bar u/sec. 37 of the NDPS Act is attracted.”

The judge further reasoned that given the commercial quantity, the applicant was not entitled to bail. The court also cited that the investigation was at an initial stage and granting bail would affect further investigation. The “gravity of offence and prescribed punishment” were additional factors leading the court to deny bail.

Conclusion

Therefore, the court rejected Bail Application No. 901 of 2023, stating it was “disposed off accordingly.”