Mumbai: The Special Judge for Narcotic Drugs and Psychotropic Substances (NDPS) Act cases at Greater Bombay, Shri A.V. Kharkar (C.R.NO.42), has rejected the second bail application of Smt. Rukhsana Asgar Shaikh, 55, who was arrested in connection with the seizure of heroin. The order was passed on December 4, 2023.
Shaikh, a housewife residing in Mumbai, was arrested by officers of the Bandra Police Station in CR.No.1499 of 2023 for offenses punishable under Section 8(c) read with Section 21(b) and 29 of the NDPS Act, 1985. Her first bail application had been rejected on October 19, 2023.
Prosecution’s Case
According to the prosecution, on October 6, 2023, a team from Bandra Police Station, led by PI Purnaik, was on patrolling duty near Shastri Nagar, Bandra (West). They observed a man and a woman moving suspiciously. Upon stopping them and calling panch witnesses, the individuals were identified as Nasir Dawood Khan and Rukhsana Asgar Shaikh. During their search, they were allegedly found carrying ‘gard’ (heroin) weighing 34 grams and 26 grams respectively.
Arguments for Bail
Advocate Mr. Bhandary, representing Rukhsana Asgar Shaikh, argued that the seized contraband (26 grams of heroin) is a non-commercial quantity, therefore, the stringent bar of Section 37 of the NDPS Act would not apply. He contended that the accused is innocent and should not be kept behind bars. The counsel also raised the issue of the search being conducted by an unempowered officer and requested bail due to Shaikh’s alleged health ailments, offering to produce medical records.
Prosecution’s Opposition
APP Ms. Geeta Nayyar, for the State, strongly opposed the application, arguing that it was not maintainable as there were no change in circumstances since the rejection of the first bail application. She asserted that both accused are habitual offenders involved in selling narcotic substances in the Western Suburbs. The APP highlighted that the investigation is ongoing, with officers analyzing technical information to unearth a larger chain of supply and procurement of narcotic substances, which could be hampered if bail is granted. She emphasized that bail cannot be granted routinely merely because the seized quantity is non-commercial, especially given that the accused are alleged peddlers who could lead to main suppliers.
Regarding the health grounds, the APP stated that this argument was not raised in the initial bail application, denying the prosecution an opportunity to rebut it. Concerning the search, while the defense claimed a woman constable searched the bag on the API’s instructions and that she was unempowered, the APP countered that the API himself searched the bag and merely took the aid of the woman constable because the accused was a lady. She also pointed out that the charge-sheet and panchanama were not yet before the court, preventing a conclusive determination on the empowerment of the searching officer.
Court’s Decision
After hearing both sides and reviewing the submissions, Special Judge A.V. Kharkar concluded that “there are no change in circumstances since rejection of the bail application.” The court further stated, “Moreover, only because the contraband is a non commercial quantity, accused cannot be granted bail.”
Based on these observations, the court found no reason to reconsider the bail application.
Accordingly, Bail Application No. 989 of 2023 was rejected and disposed of. The order was dictated on December 4, 2023, transcribed on December 5, 2023, and signed on December 8, 2023. It was uploaded on December 8, 2023.