Mumbai, Maharashtra | September 8, 2023 – The Special Court for Narcotic Drug and Psychotropic Substances Act, 1985, at Greater Bombay, presided over by Additional Sessions Judge (C.R.43) K.P. Kshirsagar, has rejected the bail application of Shehbaj Abdul Maruf Khan, accused No. 5 in a significant drug trafficking case. The order, passed on September 8, 2023, after a 20-day deliberation period, pertains to NDPS Bail Application No. 718 of 2023, which arose from NDPS Remand Application No. 1016 of 2023, linked to Special LAC/C.R. No. 667/2023 registered at the Shivaji Nagar police station in Mumbai.

Shehbaj Abdul Maruf Khan, a 31-year-old resident of Sewree, Mumbai, was seeking bail under Section 439 of the Code of Criminal Procedure in connection with offences punishable under Section 8(c) read with Section 22(c) and Section 29 of the Narcotic Drug and Psychotropic Substances Act, 1985 (NDPS Act).

According to the prosecution’s case, a substantial quantity of Mephedrone (MD), a banned psychotropic substance, was recovered from other co-accused in the case. Specifically, 55 grams of MD were allegedly seized from co-accused No. 1, Aslam Jalil Khan, and 15 grams from co-accused No. 2, Jahangir Abdul Rehman Shaikh.

The investigation revealed that co-accused Jahangir Abdul Rehman Shaikh allegedly procured the contraband from co-accused Abdul Sufiyan @ Rahim @ Mama. Further investigation purportedly linked Abdul Sufiyan to the present applicant, Shehbaj Abdul Maruf Khan, and a Nigerian national as sources for the Mephedrone. While no drugs were directly recovered from Shehbaj Khan, the prosecution argued that his involvement was evident through the statements of the co-accused and alleged WhatsApp communication.

Advocate S.K. Zende, representing the applicant, argued that this was the first bail application filed by his client, who has been in custody since his arrest on August 2, 2023. He emphasized the lack of direct recovery of contraband from Shehbaj Khan and asserted that there was no concrete evidence establishing a nexus or connection between his client and the other co-accused. Furthermore, he highlighted that Shehbaj Khan has no prior criminal record and is a permanent resident of Mumbai, willing to abide by any conditions imposed by the court.

However, the prosecution, represented by Learned APP Mr. P.J. Tarange, vehemently opposed the bail application. The prosecution highlighted the significant cumulative quantity of Mephedrone recovered, classifying it as a “commercial quantity” under the NDPS Act. This classification triggers the stringent provisions of Section 37 of the Act, which imposes limitations on the grant of bail.

The Learned APP argued that the statements of the co-accused and the alleged exchange of WhatsApp messages provided sufficient “positive material” indicating a nexus between Shehbaj Khan and the other accused, portraying him as a drug peddler. The prosecution contended that the applicant had failed to demonstrate any credible reasons to believe he was not guilty of the alleged offences. They further argued that the ongoing investigation could be hampered by his release and that there was a possibility of him re-engaging in similar criminal activities.

In his detailed oral order, Judge K.P. Kshirsagar meticulously considered the arguments presented by both sides and the material on record. The court acknowledged the applicability of Section 37 of the NDPS Act due to the commercial quantity of the seized contraband.

The court observed, “From prima facie appreciation of material on record, it reveals that, the applicant/accused is a drug peddler and involved in the sale of the contraband. From the prima facie appreciation of the material on record there is positive material to show that, applicant/accused and co-accused are having nexus with each other. From the appreciation of the material on record prima facie there appear involvement of the applicant/accused in the crime. As such provision of section 37 of NDPS Act are applicable. Applicant/accused has not brought on record any material to show that there are grounds to believe that he is not guilty of offence. Hence, embargo put by section 37 of NDPS Act is not lifted.”

The court further noted that the investigation was still underway and that there was no apparent reason to doubt the genuineness of the prosecution’s case. Considering the serious nature of the offence, the court expressed apprehension that releasing the accused at this stage could lead to the tampering of witnesses or interference with the investigation. The possibility of the accused getting involved in similar offences was also a significant concern for the court.

Judge Kshirsagar stated, “Considering the nature of offence the possibility that, after release of the applicant/accused, the applicant/accused may tamper the prosecution witnesses or influence the witnesses or may involve in commission of such offences cannot be ruled out at this stage. Moreover, considering the quantity of the contraband seized and the facts of the case free, fair and full investigation of the present crime is likely to be prejudiced and investigation is likely to be hampered if the applicant/accused is released at this stage. Therefore, at this stage there appear necessity for the further detention of the applicant/accused for facilitating further investigation.”

The court also highlighted the alleged “active role” played by the applicant and the “heinous nature” of the offence. While acknowledging that a high degree of evidence is not required at the bail stage to establish conspiracy, the court found that the applicant had failed to prima facie demonstrate his non-involvement in the crime.

Concluding the order, Judge Kshirsagar emphasized that releasing the applicant at this juncture would likely be prejudicial to the larger interests of society and that a liberal approach to bail in NDPS Act offences was unwarranted.

Consequently, the court passed the order rejecting the bail application of Shehbaj Abdul Maruf Khan. The order was pronounced in open court on September 8, 2023, and a certified true copy was made available on September 13, 2023.

This order underscores the strict stance taken by the judiciary in cases involving commercial quantities of narcotic drugs and psychotropic substances, particularly in light of the stringent bail provisions under the NDPS Act. The continued detention of the accused suggests that the investigation is progressing, and the prosecution believes it has a strong case against the alleged drug trafficking network. The case will now likely proceed towards the filing of a charge sheet and subsequent trial.