Mumbai, Maharashtra – A Special Court for Narcotic Drugs and Psychotropic Substances (NDPS) Act cases in Greater Mumbai has granted bail to Nazim Sohel Qureshi (29), who was arrested in connection with the seizure of 55 grams of Mephedrone (MD). The court found a prima facie violation of NDPS Act provisions regarding search procedures and noted a lack of independent material connecting Qureshi directly to the contraband.

Additional Sessions Judge K.P. Kshirsagar (C.R.43) issued the order on January 6, 2024, in NDPS Bail Application No. 1090 of 2023. Qureshi was booked by Kherwadi Police Station under C.R. No. 482/2023 for offenses punishable under sections 8(c) read with 21(c) and 29 of the NDPS Act, 1985.

Prosecution’s Case: Suspicious Duo on Motorcycle

The prosecution alleged that on August 8, 2023, the applicant, Nazim Sohel Qureshi, and co-accused Azhar Hasan Sayyed were found in suspicious circumstances on a motorcycle (MH-01-DM-3095). Upon apprehension, a search of co-accused Azhar Hasan Sayyed’s person led to the recovery of 55 grams of Mephedrone (MD). Consequently, both were booked under the NDPS Act, including Section 29 (criminal conspiracy).

Ld. APP Mr. Rajput argued that 55 grams of MD constitutes a commercial quantity, thereby attracting the stringent provisions of Section 37 of the NDPS Act. He contended that the investigation was ongoing, wanted accused were yet to be arrested, and releasing Qureshi could hamper the investigation and lead him to commit similar offenses.

Applicant’s Defense: Illegal Search and No Recovery from Him

Ld. Adv. Mr. Kamlesh Satre, representing Nazim Sohel Qureshi, presented the following arguments:

• No recovery from the applicant: He emphasized that no contraband was recovered from Qureshi’s personal possession. The recovery was solely from co-accused Azhar Hasan Sayyed.
• Vitiated search: Mr. Satre contended that the search of co-accused Azhar Hasan Sayyed was conducted by Police Constable Patil, who, according to a Maharashtra Government Notification under Section 41(2) of the NDPS Act, is not authorized to conduct personal searches. Only Police Officers of and above the rank of Head Constable are empowered to do so. This, he argued, vitiated the entire search. He cited the Bombay High Court’s decision in Aarif Akram Shaikh Vs. State of Maharashtra (Bail Application No.3158/2021, dated 07/02/2023) to support his claim.
• Lack of Nexus: Beyond being found on the same motorcycle, there was no “positive material on record to indicate the nexus” between Qureshi and the co-accused or the recovered contraband.
• No criminal antecedents: Qureshi is a resident of Mumbai and has no prior criminal record.
• Fulfillment of Section 37 conditions: Mr. Satre argued that due to the vitiated search and lack of direct evidence, Qureshi had “demonstrated reasonable grounds to believe that, applicant/accused is not guilty” and was “not likely to commit similar offence again,” thereby fulfilling the twin conditions for bail under Section 37 of the NDPS Act.

Court’s Analysis and Decision

Judge K.P. Kshirsagar carefully examined the arguments, the police reply, and the relevant legal provisions.

The court explicitly addressed the critical point of the search:

“From the copy of FIR and reply of the application it appears that, search of the co-accused from whose possession the contraband is alleged to be recovered was carried out by Police Constable Patil. As per the Notification issued by the Maharashtra Government in exercise of the powers conferred by sub-section (2) of section 41 of the NDPS Act, 1985, ‘All Police Officers of and above the rank of Head Constable in the State of Maharashtra are authorised to take search of the person of the accused’. Therefore, from the notification and the observations in the citation relied by the applicant/accused cited supra there appear substance in the contention of the Ld. Advocate for the applicant/accused that since the Police Constable below the rank of the Head Constable in the State of Maharashtra is not empowered officer and the search carried out by him is not a valid search.”

The judge concluded that “prima facie there is violation of provision of section 42 of the NDPS Act and the search of the co-accused from whose possession the contraband alleged to be recovered is vitiated.” This finding indicated a “material discrepancy in the prosecution case.”

Furthermore, the court noted that “except the fact that, applicant/accused and co-accused were found on the same motor cycle there is no independent material on record to show any nexus between applicant/accused and co-accused.”

Based on these observations, the court held that Qureshi had “demonstrated reasons to show that there are grounds to believe that applicant/accused is not guilty of offence alleged to have been committed by him.” Considering Qureshi’s lack of prior convictions or criminal antecedents, the court was also “satisfied that, the applicant/accused is not likely to commit similar offence again.”

Thus, the court found that the conditions under Section 37 of the NDPS Act were fulfilled, and the “embargo put by section 37 of NDPS act is also lifted.”

Recognizing the fundamental right to personal liberty and the principle of presumption of innocence, the court stated that the “object of the bail is to secure the attendance of the accused at the trial and the object is neither punitive and preventive.” It found that Qureshi had cooperated with the investigation and would likely cooperate with the trial.

The judge concluded that releasing Qureshi on bail at this stage would not be “prejudicial either to fair investigation or to the interest of society at large.”

Bail Granted with Conditions

The court allowed NDPS Bail Application No. 1090 of 2023, ordering Nazim Sohel Qureshi’s release on a personal bond of ₹50,000/- with one surety in the like amount, subject to the following conditions:

• Cooperation with IO: Qureshi must cooperate with the Investigating Officer and make himself available for interrogation when required.
• No Tampering: He shall not tamper with prosecution evidence or influence witnesses.
• Trial Cooperation: He shall cooperate in the early disposal of the trial.
• No New Offenses: He shall not commit any criminal offense while on bail.
• Contact Information: He and his surety must provide their mobile numbers and present addresses, along with proof of residence.

The application stands disposed of accordingly.