Mumbai: A Special Judge for NDPS (Narcotic Drug and Psychotropic Substances) Act cases in Greater Mumbai, K.P. Kshirsagar (C.R.43), has granted bail to Mrs. Rubina Niyaju Shaikh, a 37-year-old housewife accused of supplying Mephedrone (MD). The order, pronounced on January 6, 2024, allows Shaikh’s release on a personal bond of Rs. 50,000/- with one surety of the like amount.

Shaikh, a resident of Qureshi Nagar Slum Area, Mumbai, was arrested in connection with Bandra police station C.R. No. 997/2023. She faces charges under Sections 8(c) read with 22(b) and 29 of the NDPS Act, 1985. She has been in custody since October 29, 2023.

Prosecution’s Case and Defense Arguments

The prosecution’s case is that on July 3, 2023, during patrolling, co-accused Sohail Riyajuddin Saifi was apprehended in a suspicious condition. A personal search of Saifi and the boot of his Suzuki Access Scooter allegedly led to the recovery of 51 grams of Mephedrone (MD). During interrogation, Saifi reportedly disclosed that he had procured the contraband from Mrs. Rubina Niyaju Shaikh, leading to her arrest. The prosecution, represented by Ld. APP Mr. P.J. Rajput, argued that 51 grams of MD constitutes a commercial quantity, thus attracting the stringent provisions of Section 37 of the NDPS Act. They also pointed to Shaikh’s criminal antecedents and expressed concern that her release might hamper the ongoing investigation and lead to similar offenses. The APP cited the Supreme Court’s decision in Sudha Singh Vs. The State of Uttar Pradesh & Anr.

Ld. Adv. Mr. Sawalkar, appearing for Mrs. Rubina Niyaju Shaikh, strongly argued for her bail. He highlighted that no contraband was recovered directly from Shaikh’s possession. He brought to the court’s attention that the co-accused, Sohail Riyajuddin Saifi, had already been released on bail on the crucial ground that his personal search was conducted by an unauthorized officer (Police Constable Wani), which vitiates the trial. Mr. Sawalkar contended that this illegal search also undermines the case against Shaikh, as there is “no independent positive material to indicate any nexus between applicant/accused and co-accused.” He asserted that Section 29 of the NDPS Act (criminal conspiracy) is also not applicable. He also stated that while Shaikh might have criminal antecedents, this alone should not disentitle her to bail, especially since she is a woman and a permanent resident of Mumbai. He relied on the Bombay High Court’s judgment in Abdullah Abdul Salam Shaikh Vs. The State of Maharashtra.

Court’s Findings and Rationale

Special Judge K.P. Kshirsagar carefully examined the arguments, documents, and relevant legal precedents. The court acknowledged that 51 grams of MD is a commercial quantity, and prima facie, a case for an offense under Section 8(c) read with 22(c) and 29 of the NDPS Act appears to be made out, thus making Section 37 of the NDPS Act applicable.

However, the pivotal point for the court was the legality of the search:

• The court explicitly noted that the search of co-accused Sohail Riyajuddin Saifi and his vehicle was conducted by Police Constable Wani.
• Referring to a notification from the Home Department, Maharashtra (dated November 14, 1985), the court confirmed that only Police Officers of and above the rank of Head Constable are authorized to conduct such searches under Section 41(2) of the NDPS Act.
• Consequently, the court found the search conducted by Police Constable Wani to be “apparently illegal” and “invalid,” which “vitiates the proceeding.”
• The court further emphasized that there was “no any independent material to indicate the nexus between the applicant/accused and co-accused.”

The judge also noted that the co-accused, from whom the commercial quantity of contraband was directly recovered, had already been released on bail (in NDPS Bail Application No. 987/2023) due to the illegal search. This reinforced the argument that the same ground should apply to Shaikh, who had no direct recovery from her.

Given these circumstances, the court concluded that Shaikh had demonstrated “reasonable grounds to believe that…she is not guilty of the offence alleged to have been committed by her.” The court found that the embargo placed by Section 37 of the NDPS Act was lifted due to the illegality of the search and the lack of independent nexus. Additionally, the court considered Shaikh’s status as a woman and the presumption of innocence.

Bail Conditions

Accordingly, NDPS Bail Application No. 1083 of 2023 was allowed. Mrs. Rubina Niyaju Shaikh is to be released on bail, subject to the following conditions:

• She shall cooperate with the Investigating Officer and make herself available for interrogation as and when required.
• She shall not tamper with prosecution evidence or influence prosecution witnesses in any manner.
• She shall cooperate in the early disposal of the trial.
• She shall not commit any criminal offense while on bail.
• She and her surety shall provide their respective mobile numbers and present address and proof of residence at the time of executing the bail bond/surety bond.

The bail application stands disposed of. The order was signed on January 8, 2024, and uploaded on the same day.