Mumbai, January 5, 2019 – The Special Court for Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, at Greater Bombay, has granted bail to Ismail Barkat Ali Shaikh @ Che-Che, 38, who was arrested in December 2018 for alleged possession of Phensedyl cough syrup bottles containing codeine phosphate.

Special Judge U.M. Mudholkar, presiding over the case (Bail Application No. 936 of 2018), ruled that the quantity of codeine phosphate recovered from Shaikh was below the “commercial quantity” threshold as per recent judicial interpretations, thereby not attracting the stringent Section 37 of the NDPS Act.

Shaikh was arrested by the Anti-Narcotic Cell (ANC), Worli Unit, on December 7, 2018, in connection with C.R. No. 65/2018. The prosecution alleged that officers on patrolling duty found Shaikh “loitering in suspicious circumstances,” and a search of his bag led to the recovery of 440 Phensedyl cough syrup bottles, which they claimed contained 88 grams of codeine phosphate. He was subsequently charged under Section 8(c) read with Section 22 of the NDPS Act.

Defense Argues Against Commercial Quantity

During the bail hearing, Ld. Advocate Mr. Mishra, representing Shaikh, vehemently argued that the actual quantity of codeine phosphate, when calculated correctly based on established legal precedents, would fall below the commercial quantity limit. He cited significant judgments, including:

• Shahabuddin and another V/s. State of Assam (2012)
• Ankush Chauhan V/s. State of H.P. (2017)
• Rajveer Singh @ Raju V/s. State of Punjab (2018)

These rulings, particularly the Punjab & Haryana High Court’s observation in the Rajveer Singh case, established that in mixtures containing both narcotic/psychotropic substances and neutral/non-psychotropic substances, only the quantity of the actual narcotic/psychotropic substance should be counted for determining commercial quantity. Based on this methodology, Mr. Mishra contended that the 88 grams of codeine phosphate would be considered a “non-commercial” quantity, thus lifting the bar of Section 37 of the NDPS Act.

Mr. Mishra further emphasized that Shaikh was falsely implicated, had deep roots in society, and would abide by any conditions imposed by the court. He also highlighted that Shaikh was suffering from a physical ailment requiring medical treatment. He added that the investigation was “almost completed,” with no further recovery or discovery required from the applicant, and that prolonged detention was unwarranted given the likely long duration of the trial.

Prosecution’s Stance and Court’s Decision

Ld. APP Mr. Panjwani, representing the State, opposed the bail, arguing that as per a notification dated November 18, 2009, the “entire mixture” of the drug needs to be considered, which, in this case, would amount to a commercial quantity. He also expressed apprehension that Shaikh might engage in similar activities or abscond if released on bail.

However, Judge Mudholkar, after careful consideration of the submissions and judicial precedents, sided with the defense. The court noted that the prosecution failed to cite any “counter judgment” to challenge the consistent legal view that only the pure drug content should be weighed.

The judge observed that:

• As per calculations derived from cited judgments (including Micheal Raj V/s. Intelligence officer of NCB and Sayyad Aalam V/s. State of Assam), the total quantity of codeine phosphate in 440 Phensedyl bottles would indeed be 88 grams.
• Entry No. 28 of the relevant table specifies that 1 kilogram and above is considered a commercial quantity for codeine.
• Therefore, 88 grams falls into the “non-commercial” category, making Section 37 of the NDPS Act inapplicable.

The court also took into account that Shaikh had been in custody since December 7, 2018, and the investigation was likely complete, except for the chemical analysis (CA) certificate. The judge found “neither evidence nor allegation of any criminal antecedence to the dis-credit of the applicant” and acknowledged his medical condition.

Bail Conditions Imposed

Concluding that further detention was “unwarranted,” the court granted bail with the following stringent conditions to ensure the prosecution’s interests are protected:

1. Shaikh must execute a Personal Recognizance (P.R.) Bond of Rs. 75,000/- with one or two sureties in the like amount.
2. He shall not directly or indirectly dissuade any prosecution witnesses from testifying or tamper with evidence.
3. He must furnish his permanent residential address with documentary evidence (such as AADHAR Card, Ration Card, or PAN Card) and his cell number.

The bail application was accordingly disposed of.

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