Mumbai, Maharashtra – November 21, 2018 – The Special Court for Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, at Greater Bombay, presided over by Special Judge Shri U. M. Mudholkar (C.R. NO.43), today rejected the bail application of Tabassum Arif Shaikh (34). Shaikh, a housewife residing in Masjid Bunder, was arrested by the Anti Narcotic Cell (ANC), Kandivali Unit, Mumbai, in connection with offences punishable under sections 8(c) read with 22(C), 23, and 29 of the NDPS Act.

The bail application (No. 700 of 2018) was filed in relation to NDPS Spl. Remand Application No. 917 of 2018.

The Prosecution’s Case

The prosecution’s narrative, presented by Ld. APP Mr. Panjwani, detailed an operation stemming from intelligence received by ANC officers from CSI Airport, Mumbai. The information concerned a co-accused, Furkana, who was attempting to clear passport control for a flight to Qatar with suspicious baggage.

Upon receiving the tip, PI Kadam of the ANC recorded the information and, with the assistance of a dog sniffing squad, inspected Furkana’s three bags. Inside, concealed within three story books, 13 wax bangles, and skipping ropes, officers discovered 465 grams of Amphetamine, a psychotropic substance valued at an estimated Rs. 23,25,000/-. The contraband was seized, and an FIR (CR No. 41/2018) was lodged, leading to Furkana’s immediate arrest.

During her custodial interrogation, Furkana allegedly disclosed that the trolley bags containing the drugs were handed to her by the present applicant, Tabassum Arif Shaikh, and another co-accused, Rashid Faras, at Hotel Shalimar. Subsequently, both Tabassum and Rashid Faras were arrested. Rashid Faras further allegedly revealed during his interrogation that individuals named Niyaz, Shoeb, Mustakeem, and Abdul Rashid had stayed at Hotel Zhamzham. As per Mustakeem’s instructions, the baggage was given to Rashid Faras, who, with Tabassum’s assistance, then delivered it to Furkana at Hotel Shalimar for transportation to Qatar.

Tabassum Arif Shaikh has been in judicial custody following the cessation of her ANC custody.

Arguments for Bail

Ld. Advocate Mr. S. R. Patil, representing Tabassum Arif Shaikh, argued that his client was falsely implicated in the crime. He highlighted that no contraband was recovered from Tabassum’s possession either at the spot of arrest or during the subsequent investigation. He asserted that she had been thoroughly interrogated, and her continued judicial custody was unwarranted. Mr. Patil emphasized that the applicant is a permanent resident of Mumbai with deep roots in society and was willing to abide by any conditions imposed by the Court for her release.

Mr. Patil also made an additional submission, stating that Tabassum’s minor daughters were suffering from fever, appealing for her release on compassionate grounds. He cited an order passed in the case of Ganesh Elamale Lounder V/s. State of Maharashtra in Bail Application No. 877/2017, decided on June 13, 2017, by the Hon’ble High Court, in support of his arguments.

Prosecution’s Opposition

Ld. APP Mr. Panjwani strongly contested the bail application. He stressed that a commercial quantity (465 grams) of Amphetamine was seized from co-accused Furkana, and it was allegedly being exported to Qatar with the help of the applicant and her associates. He argued that the investigation was “progressive” and at a “crucial stage,” necessitating continued custody to uncover the full extent of the conspiracy.

Court’s Deliberation and Reasons for Rejection

Special Judge U. M. Mudholkar meticulously considered the submissions from both sides, the judgment cited by the defense, and the case record. While acknowledging that no contraband was physically seized from Tabassum’s possession, the court found strong prima facie evidence of her involvement.

The key points in the court’s reasoning for denying bail were:

• Prima Facie Complicity: The court observed that “during the course of investigation it has been revealed that, the contraband was handed over to prime accused Fukrana by present applicant Tabassum and her associate Rashid Faras. Thus, the complicity of the present applicant in the commission of alleged offences is clearly visible on record, at least at this stage.”
• Commercial Quantity and Section 37: Given the recovery of a commercial quantity of Amphetamine, the court determined that the bar of Section 37 of the NDPS Act was “certainly get attracted.” This section places strict conditions for granting bail in cases involving commercial quantities, requiring the court to be satisfied that there are reasonable grounds to believe the accused is not guilty and is unlikely to commit any offense while on bail. The court found insufficient grounds to overcome this statutory bar.
• Crucial Stage of Investigation: The court noted that the investigation was not only ongoing but also at a “crucial stage.” It was highlighted that CDR (Call Detail Record) and cyber experts’ assistance were being utilized, and CCTV footage was being scrutinized.
• Absconding Accused: Several wanted accused persons, namely Shoeb, Niyaz, Munis, and Mohasin, were yet to be arrested, making continued custody necessary to ascertain the “depth of their complicity.” The court expressed concern that releasing the applicant on bail at this juncture could “cause serious prejudice to the investigation agency.”
• Distinguishable Precedent: The court found the judgment cited by the applicant’s counsel (Ganesh Elamale Lounder V/s. State of Maharashtra) to be distinguishable on facts, as in that case, the charge-sheet had already been filed, and the prime accused was already on bail, which is not the situation in the present case.
• Severity of Punishment: The judge also considered the severity of the potential punishment, noting that the offenses attract “stringent rigorous punishment of 20 years,” making bail “not at all desirable” at this stage.

Based on these comprehensive considerations, the court rejected the arguments advanced on behalf of the applicant.

Orde

The court issued an order stating that Bail Application No. 700/2018 stands rejected and disposed of accordingly.