Mumbai, Maharashtra | November 2, 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, rejected the bail application of Mr. Yusif Hasim Shaikh, accused No. 2 in a substantial drug trafficking case. The order, passed on November 2, 2023, after a deliberation period of one month and thirteen days, pertains to NDPS Bail Application No. 832 of 2023, which arose from NDPS Remand Application No. 981 of 2023, linked to Special Case No. 1684 of 2023, registered at the ANC Ghatkopar Unit, Mumbai (C.R. No. 33/2023).

Mr. Yusif Hasim Shaikh, a 37-year-old resident of Malad (East), 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, on April 21, 2023, co-accused No. 1, Tasrif Sabir Beg @ Pailwan, was found in suspicious circumstances, and a personal search allegedly led to the recovery of 112 grams of Mephedrone (MD), a banned psychotropic substance. During the investigation, the co-accused No. 1 reportedly disclosed that he had procured the said contraband from the present applicant, Mr. Yusif Hasim Shaikh. Consequently, Mr. Shaikh was arrested on July 28, 2023.

Advocate Mr. Hardik Singh, representing the applicant, argued that this was his client’s first bail application, with no other pending applications in higher courts. He contended that Mr. Shaikh was falsely implicated based solely on the statement of co-accused No. 1 and that there was no independent evidence establishing a nexus between the applicant and the co-accused. He emphasized that Mr. Shaikh was a resident of Mumbai and was prepared to abide by any conditions imposed by the court.

However, the prosecution, represented by Learned APP Mr. P.J. Tarange, strongly opposed the bail application. The prosecution highlighted the recovery of 112 grams of Mephedrone (MD) from co-accused No. 1 and the subsequent disclosure implicating the applicant as the supplier. The prosecution argued that the investigation revealed a conspiracy between the applicant and the co-accused for drug trafficking, presenting “positive material” indicating their nexus. Given the quantity of contraband recovered from the co-accused, the prosecution asserted that the stringent provisions of Section 37 of the NDPS Act were applicable. Furthermore, they argued that the applicant had failed to demonstrate reasonable grounds to believe he was not guilty of the alleged offences. The prosecution contended that releasing the applicant at this stage would likely hamper the ongoing investigation.

In his detailed oral order, Judge K.P. Kshirsagar meticulously considered the arguments and the record of Special Case No. 1684/2023. The court noted that the applicant was accused of offences carrying a potential sentence of up to 20 years imprisonment and a significant fine, highlighting the grievous nature of the alleged crime.

The court emphasized the applicability of Section 37 of the NDPS Act, stating, “Considering fact that commercial quantity of contraband is recovered from the conscious possession of the co-accused No.1 and nature of offences rigors of section 37 of NDPS Act are applicable to present matter.”

Judge Kshirsagar elaborated on the limitations imposed by Section 37(2) of the NDPS Act, stressing that these limitations are in addition to those under the Code of Criminal Procedure and other laws, reflecting the legislature’s intent to control and eradicate the menace of drugs in the public interest. The court reiterated that for granting bail in such cases, the twin conditions under clause (b) of sub-section (1) of Section 37 must be satisfied, with the negation of bail being the rule and the grant being the exception.

The court observed, “The quantity of contraband recovered from the co-accused No.1 is a commercial quantity. 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. The statement of co-accused No.1 is admissible for the purpose of investigation. From the CDR analysis of mobiles of applicant/accused and co-accused it appears that, both the accused were in contact with each other. Considering the matter on record prima facie there appear no substance in the contention of the applicant/accused that, there is no positive material on record to show that, applicant/accused and co-accused No.1 has no any nexus and they have not hatched any conspiracy.”

The court further stated, “In view of mandate of section 37 of the NDPS Act the burden is upon the accused to show that, there are reasonable grounds to believe that, she is not guilty of the offence alleged. However, the applicant/accused has not demonstrated any reasonable grounds to believe that, she has not committed the offence alleged. From the appreciation of the material on record there are reasonable grounds to believe that, applicant/accused has committed the offence punishable under section 8(c) r/w section 22(c) and section 29 of NDPS Act. Moreover, considering the nature of offence and the matter on record and the fact that, huge quantity of contraband was recovered from the applicant/accused and the co-accused No.1 court is also not satisfied that, the applicant/accused will not commit the similar offence again. As such conditions under section 37 of NDPS Act are not fulfilled and therefore, embargo put by section 37 of NDPS act is not lifted.”

The court also expressed concerns about potential tampering with evidence and influencing witnesses if the applicant were released at this stage, given the ongoing investigation.

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

Consequently, the court passed the order rejecting the bail application of Mr. Yusif Hasim Shaikh. The order was pronounced in open court on November 2, 2023, and a certified true copy was made available on November 6, 2023.

This order underscores the stringent approach adopted by the special court in cases involving commercial quantities of narcotic drugs, particularly in light of the limitations on granting bail under Section 37 of the NDPS Act. The denial of bail indicates the court’s prima facie assessment of the applicant’s involvement in a serious drug trafficking conspiracy and the potential ramifications of his release on the ongoing investigation and public safety.