Mumbai, January 2, 2019 – A Special Court for Narcotic Drugs and Psychotropic Substances (NDPS) Act in Greater Mumbai today granted bail to Firoza Sattar Khan, a 60-year-old housewife, who was arrested in connection with the seizure of codeine phosphate-containing cough syrup bottles. Special Judge Shri U.M. Mudholkar presided over Bail Application No. 901 of 2018, which arose from C.R. No. 61/2018 registered with the Anti Narcotic Cell (ANC), Azad Maidan Unit.

Firoza Sattar Khan was arrested for alleged violations of Sections 8(c) read with 22 and 29 of the NDPS Act, 1985.

Prosecution’s Case

According to the prosecution’s brief, ANC officers on patrolling duty encountered Firoza Sattar Khan and two associates, Jayalaxmi Bayanivel Orondodaur and Madina Shaikh, loitering in suspicious circumstances. Upon searching their baggage, 75 bottles of Corex cough syrup (totaling 15.2 gm codeine phosphate) were found in Firoza’s possession. Additionally, 41 Phencyrex cough syrup bottles (8.2 gm codeine phosphate) were found with co-accused Madina, and 28 Phencyrex cough syrup bottles (5.6 gm codeine phosphate) with co-accused Jayalaxmi. The accused were subsequently arrested.

The State, represented by Ld. APP Mr. Panjwani, argued that according to a notification dated November 18, 2009, the entire mixture of the Narcotic Drug or psychotropic substance needs to be considered, which in this case, would amount to a commercial quantity, thereby attracting the bar of Section 37 of the NDPS Act. They also contended that the applicant possessed the Corex bottles without any valid documents.

Defense’s Argument and Court’s Interpretation of Quantity

Ld. Advocate Mr. V.P. Shinde, representing Firoza Sattar Khan, argued that the quantity of Codeine Phosphate, if calculated properly, does not cross the limit of commercial quantity. He contended that Section 37 of the NDPS Act, which imposes stringent conditions for bail in commercial quantity cases, therefore does not apply.

Crucially, Mr. Shinde relied on several High Court judgments, including Shahabuddin and another V/s. State of Assam (2012 (3) GAU LT 440), Ankush Chauhan V/s. State of H.P. (Cr.M.P. (M) No. 432/2017 decided on April 25, 2017), and Rajveer Singh @ Raju V/s. State of Punjab (CRM-M-35080-2018 decided on August 12, 2018, by the Punjab & Haryana High Court). These judgments, particularly the latter, support the principle that only the quantity of the actual narcotic/psychotropic substance present in a mixture/solution is to be counted for determining ‘commercial quantity’, and not the entire neutral or non-psychotropic substance.

Judge U.M. Mudholkar, after careful consideration of the submissions and relevant case law, concurred with the defense’s interpretation. He specifically cited the methodology of calculation from the Shahabuddin case, which relied on Micheal Raj V/s. Intelligence officer of NCB (2008 5 SCC 161) and Sayyad Aalam V/s. State of Assam (2011 Cr.L.J. 3140). The judge noted that the recent Rajveer Singh judgment further reinforced this position.

The court stated, “No counter judgment has been cited by the prosecution/Learned APP Mr. Panjwani to take a different or contrary view than the one which is reflected in the above judgments. Under these circumstances, at this stage, there is no alternative before this court than to accept the argument submitted by Ld. Adv. Shinde for the applicant.”

Based on these calculations, the total quantity of Codeine Phosphate in the 75 Corex bottles (15 gm) was deemed non-commercial in nature, as per Entry No. 28 of the table which defines 1 kg and above as commercial quantity. Therefore, the bar under Section 37 of the NDPS Act was found not to be attracted.

Other Considerations and Bail Grant

The court also noted that the applicant had been in custody since November 28, 2018, and that the investigation was likely complete, except for the collection of the CA certificate. The judge found “no likelihood of tampering with the evidence or otherwise” and that “nothing is to be recovered or discovered on pointing out of the applicant.” Recognizing that the conclusion of the trial would take “sufficient long time,” the court deemed further detention unwarranted.

The applicant provided a copy of her Aadhar Card, indicating a permanent address, which minimized the chance of her absconding. While the prosecution mentioned criminal antecedents, the court noted that there was no record of conviction in any of those cases. The court also referred to several High Court judgments where bail was granted despite criminal antecedents.

Bail Conditions

Accordingly, Special Judge Mudholkar allowed the bail application, imposing the following conditions to secure the prosecution’s interest:

• Personal Recognizance Bond: Firoza Sattar Khan is to be released on bail upon executing a Personal Recognizance (P.R.) Bond of ₹75,000/- (Rupees Seventy Five Thousand Only), with one or two sureties of the like amount.
• No Tampering: The applicant shall not directly or indirectly dissuade any prosecution witnesses from deposing in the Court or tamper with the prosecution evidence in any way.

The bail application has been disposed of.