Mumbai, September 16, 2023 – In a recent order dated September 14, 2023, the Special Judge for NDPS Cases at Greater Mumbai, Shri R. R. Bhagwat (C.R.44), granted bail to Rehana Niyaz Shaikh, an accused in C. R. No. 456/2023 registered at Shivaji Nagar Police Station under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The court cited the illegal search conducted by an unauthorized female police constable (WPC) and the principle of parity with the co-accused who was already granted bail as primary reasons for its decision.

The prosecution’s case stated that on May 29, 2023, police officers on patrol noticed a woman (accused no. 1) with a suspicious plastic bag containing 600 Alprazolam tablets and 12 bottles of cough syrup containing Codeine. During interrogation, she allegedly named the present applicant, Rehana Niyaz Shaikh (accused no. 2), as the supplier. Subsequently, the applicant was apprehended from her residence with 600 Alprazolam tablets (0.5 mg) and 13 bottles of cough syrup containing Codeine, which were seized under a panchanama. Both accused were arrested after the registration of the offence.

The applicant sought bail, arguing that she was falsely implicated and victimized. Her counsel, Mr. Dilip Mishra, highlighted that the co-accused, from whom the initial contraband was recovered, had already been granted bail by the same court. He further contended that there was non-compliance with Section 50 of the NDPS Act regarding search procedures and that the contraband was not exclusively recovered from the applicant’s possession. Mr. Mishra also pointed out that the prosecution’s own case suggested the seized articles were brought by her son, Sonu, who is wanted in the case. He argued that the recovered substances were in the form of medicine and that as a woman, her bail could be considered under Section 437(2) of the Criminal Procedure Code (Cr.P.C.). The applicant expressed her willingness to abide by all conditions imposed by the court and asserted that she is a permanent resident of Mumbai.

Mr. Mishra specifically stressed that the search of the applicant was conducted by a WPC who was not an empowered officer under Section 42(1) of the NDPS Act. He relied on a previous judgment of the Bombay High Court in Smt. Najma Abdul Shaikh v/s. State of Maharashtra, where a similar aspect was considered. He also argued that the applicant was entitled to bail on the ground of parity with the co-accused. While acknowledging the applicant’s five prior criminal cases, Mr. Mishra clarified that three were under the Drugs and Cosmetics Act, one was a Section 376 IPC case where she was acquitted, and one involved consumption of a small quantity of narcotic drug with a maximum punishment of one year imprisonment. He argued that criminal antecedents alone should not be a ground to refuse bail, citing two further Bombay High Court judgments in support: Smt. Najma Abdul Shaikh v/s. State of Maharashtra and Gani Latif Shaikh v/s. State of Maharashtra.

Conversely, the Learned APP Mr. Shankar Erande argued that accused no. 1 was apprehended during routine patrolling. He stated that accused no. 2 was arrested based on the statement given by accused no. 1 and claimed that Section 50 of the NDPS Act was complied with. He also mentioned that the applicant was found in possession of 25 mobile phones and that she is a habitual offender with criminal antecedents, urging the court to reject the bail application.

The Special Judge, Shri Bhagwat, after considering the rival submissions and material on record, focused on the argument regarding the search conducted by an unauthorized WPC under Section 42(1) of the NDPS Act. He noted that this aspect was elaborately dealt with in the bail order of the co-accused and was squarely applicable to the present applicant. The court concluded that the applicant was entitled to bail due to the illegal search by an unauthorized police officer.

Regarding the applicant’s criminal antecedents, the court observed that she was not convicted in any of the offences, and only one case was under the NDPS Act, relating to consumption. The court found that the applicant had satisfied the tests laid down under Section 37(1) of the NDPS Act (which typically imposes restrictions on bail for certain NDPS offences). The court also acknowledged the ground of parity, considering that the co-accused was already on bail.

Taking into account the gravity of the offence, the court deemed it necessary to impose stringent conditions. While noting that the investigation was not yet complete and the prosecution needed to interrogate the applicant, the court believed that she could be released on bail with appropriate safeguards.

The court passed the following order:

1. Bail Application No. 719/2023 is hereby allowed.
2. Applicant/accused Rehana Niyaz Shaikh arrested in connection with C. R. No. 456/2023 registered at Shivaji Nagar Police Station for offence punishable under sections 8(c) r/w Sec. 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 be released on executing P. R. Bond of ₹60,000/- (Rupees Sixty Thousand only) with one or more sureties in the like amount on the following conditions: (i) The applicant shall attend Shivaji Nagar Police Station, Mumbai on every Monday during 10.00 a.m. to 2.00 p.m. till filing of the charge-sheet from the date of this order for investigation purpose of the present crime. (ii) The applicant/accused and her sureties shall provide their respective mobile numbers and correct addresses of their residences along with names of two relatives with their mobile numbers and addresses. (iii) The applicant/accused shall produce the proof of her identity and proof of residence at the time of executing the Bail Bond. (iv) The applicant/accused shall not tamper with prosecution witnesses/evidence in any manner and co-operate in early disposal of trial. (v) The applicant/accused shall not commit similar offence while on bail.
3. On request of Ld. Advocate for the applicant/accused, the applicant/accused shall be released on provisional cash bail of ₹60,000/- for the next four weeks from the date of this order.
4. Application is disposed off accordingly.

The order, dictated on September 14, 2023, was signed on September 15, 2023, and uploaded on September 16, 2023. This case highlights the significance of adhering to proper search procedures under the NDPS Act and the application of the principle of parity in bail matters, even for individuals with prior criminal records. The court’s decision emphasizes the importance of legal safeguards for the accused during the investigation process.