Mumbai, Maharashtra – In a significant ruling that considered the principles of evidence admissibility under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, a Special Court in Greater Mumbai has granted bail to Nahendra Mahendra Makwana, aged 30, who was arrested in connection with the seizure of Mephedrone (MD).

Special Judge R.R. Bhagwat (C.R.44) issued the order on December 29, 2023, in NDPS Bail Application No. 1077 of 2023. Makwana, designated as accused no. 2, was arrested on November 28, 2023, in Crime No. 54/2023, registered with D.C.B. CID Unit V, for offenses under sections 8(c) read with 22(c) of the NDPS Act, 1985.

Prosecution’s Case Summary

The prosecution’s case, presented by Ld. APP Mr. Shankar Erande, detailed that on June 16, 2023, informant HC Milind Dinkar Nirbhavane received specific intelligence about accused no.1, Naresh Jivraj Kantariya, who was allegedly planning to sell narcotic drugs in Mazgaon, Byculla. This information was officially recorded, senior officers were informed, and a raid was organized.

During the raid, accused no.1 Naresh was apprehended and found in possession of 62 grams of Mephedrone concealed in a plastic bag, along with a mobile phone. The contraband and mobile were seized, and Naresh was arrested.

Crucially, during his interrogation, accused no.1 Naresh allegedly stated that he used to purchase the contraband from the applicant/accused no.2, Nahendra Mahendra Makwana. Inspection of Naresh’s mobile phone showed a call made to Makwana’s number. Subsequent technical investigation of Makwana’s phone revealed he had changed his number. Based on information that Makwana was at New Hind Mill, Ghodapdev, Mumbai, he was arrested from that spot on November 28, 2023, approximately five and a half months after the initial arrest of accused no.1. The charge-sheet has since been filed in the court.

Grounds for Bail Application

Ms. Munira Palanpurwala, the learned counsel for Makwana, argued that no contraband was recovered from the applicant’s possession or at his instance. She contended that, apart from the statement of the co-accused (Naresh), there was no material to connect Makwana with the alleged seizure. She emphasized that statements made by a co-accused to the police, being under Section 161 of the Cr.P.C., are generally not legally admissible as evidence against another accused.

Ms. Palanpurwala also highlighted that the prosecution had not presented other connecting evidence such as Call Detail Records (CDRs) or bank transactions specifically linking Makwana to accused no.1 regarding drug dealings. She noted the significant time gap between the arrests of accused no.1 and accused no.2 and the absence of a separate disclosure statement from accused no.1 specifically made by him to accused No. 2. She further pointed out that the prosecution had not charged Makwana under Section 29 of the NDPS Act (conspiracy), which would typically apply to suppliers. She asserted that Makwana is a permanent resident of Mumbai, the sole earning member of his family, and posed no flight risk or threat of tampering with witnesses.

Prosecution’s Opposition

Mr. Shankar Erande, the learned APP, opposed the bail, arguing that Section 50 of the NDPS Act (regarding personal search procedure) was followed during accused no.1’s apprehension. He stressed that a commercial quantity of MD (62 grams) was seized from accused no.1 and that accused no.2 was identified as the supplier and was in contact with accused no.1, with CDR details available. Mr. Erande contended that the bar under Section 37 of the NDPS Act, which places strict conditions for bail in cases involving commercial quantities, was attracted due to the serious nature of the offense. He relied on the Supreme Court’s citation in NCB v/s. Mohit Aggarwal (2022) to support his arguments for rejection of bail.

Court’s Analysis and Decision

Special Judge R.R. Bhagwat carefully considered the rival submissions and the material on record. The court acknowledged that 62 grams of MD, which is a commercial quantity, was recovered from accused no.1.

However, the pivotal point in the court’s decision hinged on the admissibility of the co-accused’s statement. The judge observed that accused no.2 was arrested primarily “on the basis of statement made by accused no.1 which is not admissible in evidence as per observations in the case of Tofan Singh v/s. State of Tamil Nadu (2021) 4 SCC 1.” This landmark Supreme Court judgment ruled that confessional statements made to investigating officers under the NDPS Act are not admissible as evidence.

The court further noted that the prosecution “has not brought on record any other acceptable evidence which would relate the applicant/accused no.2 with recovery of contraband made at the instance of accused no.1.” The judge referenced another Supreme Court case, State by (NCB) Bengaluru v/s. Pallulabid Ahmad Arimutta and Anr. (2022), where the bail of an accused directly found in possession of commercial quantity was cancelled, while bail orders for other accused who were arrested solely on the basis of co-accused statements were confirmed.

Given that no contraband was seized from accused no.2 or at his instance, and the material on record was deemed insufficient to attract Section 29 of the NDPS Act (criminal conspiracy) for holding Makwana responsible for the contraband seized from accused no.1, the court concluded that the bar under Section 37 of the NDPS Act was not applicable to Makwana’s case.

The court also noted that Makwana is a resident of Mumbai and has no criminal antecedents. Consequently, the judge found that Makwana could be released on bail with stringent conditions.

Bail Granted with Conditions

The court allowed Bail Application No. 1077/2023, ordering Nahendra Mahendra Makwana’s release on a Personal Recognizance (P.R.) Bond of ₹40,000/- with one or two sureties in the like amount.

The conditions imposed include:

1. Regular attendance at trial.
2. Providing mobile numbers and correct residential addresses for himself and his sureties, along with names and mobile numbers of two relatives.
3. Producing proof of identity and residence at the time of executing the bail bond.
4. Not tampering with prosecution witnesses/evidence and cooperating in the early disposal of the trial.
5. Not committing similar offenses while on bail.
6. As an immediate measure, Makwana will be released on a provisional cash bail of ₹40,000/- for the next four weeks from the date of the order, allowing him time to arrange for the sureties.

The application stands disposed of accordingly.